Anderson v. Cytec Industries, Inc.

Case: 09-30333 Document: 00511232484 Page: 1 Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 14, 2010

No. 09-30333 Lyle W. Cayce

Clerk

DENNIS ANDERSON,

Plaintiff – Appellant

v.

CYTEC INDUSTRIES INC,

Defendant – Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before SMITH, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:

Dennis Anderson appeals the district court’s denial of his ERISA claim for

short-term disability benefits. Because we agree with the district court that the

ERISA plan administrator did not abuse her discretion in denying the benefits,

we affirm.

FACTS AND PROCEEDINGS

In 1976, Dennis Anderson began working at a chemical plant owned by

Cytec Industries (Cytec) in Waggaman, Louisiana. By 2005, he was working as

a “panel operator,” running the computers and machinery that manufacture

sulfuric acid. The job requires sharp concentration and attention to detail. In

August 2005, Anderson and his wife, who is disabled and wheelchair-bound,

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were displaced by Hurricane Katrina. The hurricane destroyed their New

Orleans home and most of their possessions. They moved to Atlanta and have

not returned to New Orleans.

Anderson served in the Vietnam War, where he saw combat, and in the

first Gulf War. He developed post-traumatic stress disorder (PTSD) as a result

of his military service, but was able to manage it with medication and treatment

while he worked at Cytec. Anderson did not have his medication with him when

he evacuated before the hurricane. Approximately four weeks after arriving in

Atlanta, he began receiving outpatient treatment at a specialized PTSD clinic

at the Atlanta Veterans Affairs Medical Center. Treatment notes from the

psychiatrist and nurse who were treating Anderson describe an increase in

PTSD symptoms, including nightmares, intermittent auditory hallucinations,

and irritability. Anderson was prescribed medication and began attending a

weekly support group for PTSD patients.

Cytec’s facilities sustained some wind damage but were not flooded by the

hurricane. The plant reopened within several weeks. The company set up

trailers for employees whose homes were damaged and offered to place Anderson

in one of them. He declined. He reported, on several occasions, that he could not

return to work because he could not leave his wife in Atlanta and because of the

difficulty of finding appropriate housing for her in New Orleans. Cytec paid

Anderson his regular salary through September 9, 2005.

As a Cytec employee, Anderson was enrolled in two disability benefits

programs, the Short-Term Disability Plan (STDP) and the Long-Term Disability

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Plan.1 Cytec directs applications for STDP benefits to a third-party

administrator for an initial benefits determination.2 While the STDP itself is not

clear about the number of appeals available to claimants, Anderson was allowed

two: one with third-party claims administrator Broadspire and a final appeal

with Carol Van Rensalier, a Cytec human resources executive designated as the

company’s plan administrator.

The STDP requires an employee to have a “total disability” or be “totally

disabled” to receive disability benefits. It defines “total disability” and “totally

disabled” as “the complete inability of the Participant, due to sickness, injury or

pregnancy, for which the Participant is and remains under the care of a licensed

physician, to perform any and every duty pertaining to his occupation with his

Employer and/or any similar occupation which his Employer may provide.” 3

Anderson applied for STDP benefits in early October 2005. He supported

his claim with a form filled out by his treating psychiatrist, Dr. Aida Saldivia.

Dr. Saldivia noted that Anderson “has an increase in symptoms of PTSD due to

1

The parties agree that both plans are governed by the Employee Retirement Income

Security Act of 1974, 29 U.S.C. §§ 1001–1461 (ERISA). Although he asks this court to award

both short- and long-term benefits, Anderson did not contest Cytec’s assertion that it does not

underwrite or administer the long-term program and thus is not the proper defendant in a suit

for long-term disability benefits. Thus, we address only the STDP claim and take no position

on the merits of any claim for long-term benefits Anderson may have.

2

Cytec initially used the third-party administrator Broadspire Services, Inc.

(Broadspire) to handle STDP claims. Later, it switched to Aetna, which received the

documents Anderson sent after Cytec denied his final appeal.

3

The STDP contains a choice of law provision that requires questions “pertaining to

the construction, regulation, validity and effect” of the plan’s provisions to be determined in

accordance with New Jersey law. New Jersey law employs the standard contract doctrine that

the terms in an agreement “are to be given their plain and ordinary meaning.” M.J. Paquet,

Inc. v. N.J. Dep’t of Transp., 794 A.2d 141, 152 (N.J. 2002). The parties do not dispute the

meaning of any of the terms in the STDP.

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evacuation from [New Orleans]—he’s having difficulty sleeping, having

flashbacks and mood is depressed. He has difficulty concentrating and focusing

on any one task.” The form showed that Anderson was unable to perform one

test for “cognition/memory” but was able to complete other cognitive tests. The

form also indicated that Anderson was able to go about the “activities of daily

living” without assistance; in fact, during the time period in question, Anderson

was actively involved in caring for his wife. Dr. Saldivia prescribed medication,

noted that Anderson’s plans to return to work were “undetermined at this time,”

and stated that Anderson’s symptoms had intensified and “rendered him

incapable of performing job duties.” The administrative record does not indicate

whether Dr. Saldivia reviewed Anderson’s formal job description.

In late October, Broadspire’s initial review found support for a functional

impairment, and Broadspire approved STDP benefits for Anderson from

September 27, 2005—the day Anderson first sought treatment—through

November 21, 2005. At the same time, Broadspire decided to send the case for

an independent “peer review” and to seek additional documentation from his

care providers to determine whether to continue benefits past November 21. The

company was skeptical of the extent of Anderson’s functional limitation,

especially considering his repeated statements—before he sought

treatment—that he could not return to work because he could not secure

adequate housing for his wife in New Orleans. The administrative record shows

that Anderson was aware of the requirement that he keep Cytec informed of his

medical status, but he did not send any additional forms documenting his

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ongoing disability from Dr. Saldivia or any other treating physician while his

case was under review.4

Dr. Elana Mendelssohn, Psy.D., conducted the initial independent peer

review. She examined Anderson’s treatment records from September and

October 2005, the form completed by Dr. Saldivia, and Anderson’s job

description; she did not personally examine Anderson. She spoke with Dr.

Saldivia on November 8, but noted that Dr. Saldivia could not recall who

Anderson was. Dr. Saldivia did not get back in touch with Dr. Mendelssohn

after she faxed Dr. Saldivia a copy of the form Dr. Saldivia had filled out in

support of the benefits claim. Dr. Mendelssohn found that Anderson’s medical

records did “not support a functional impairment.” She considered the

symptoms Anderson had reported but stated that “it was unclear how these

symptoms were impacting [Anderson’s] functionality”; she emphasized the lack

of “specific examination findings or behavioral observations” that would

substantiate an impairment in cognitive or psychological functioning. Dr.

Mendelssohn acknowledged that the nurse who saw Anderson during his bi-

weekly visits had noted the presence of impaired memory and concentration, but

Dr. Mendelssohn also stated that treatment notes from the PTSD group

therapist had shown intact thought processes and intact memory, “which is

inconsistent with [the nurse’s] report.” In conclusion, Dr. Mendelssohn wrote

that the documentation she reviewed “primarily includes self-reported

complaints and clinical impressions,” and that the “[e]xamination findings fail

4

After his benefits were cut off, Anderson did have some therapy notes forwarded to

Broadspire. He states in his brief that he thought his health care providers were sending in

the requisite updates but acknowledges that they had not done so.

5

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to describe a psychological condition impacting the claimant’s functioning to

such a degree to preclude him from performing his own occupation.”

In December 2005, Broadspire denied an extension of Anderson’s STDP

benefits. The denial letter cited Dr. Mendelssohn’s conclusion that there were

no examination findings or behavioral observations that showed the presence of

an impairment in psychological functioning sufficient to prevent Anderson from

working. Anderson appealed and had 38 additional pages of progress notes from

Steven Barrett, his therapist, sent to Broadspire. Broadspire then instituted a

second independent peer review, this one conducted by Dr. Lawrence Burstein,

who holds a Ph.D. in psychology. Dr. Burstein reviewed Anderson’s medical file,

the prior peer review conducted by Dr. Mendelssohn, and Anderson’s job

description.

Dr. Burstein found that the medical records did not support a finding of

functional impairment that would have precluded Anderson from working from

November 21, 2005 through early March 2006, when he completed his review.

Like Dr. Mendelssohn, Dr. Burstein found that the medical records documented

Anderson’s subjective complaints and the impressions of his clinicians, but that

they did not “contain specific examples of the claimant’s behavior or

measurements of the claimant’s cognitive functioning to support these

impressions.” He also noted that no other information was available.

Broadspire informed Anderson that his appeal was denied in March 2006. Like

the earlier denial letter, the appeal denial stated that Anderson’s physician’s

opinion that he would be unable to cope with the stress of his job was not

supported by examples of behavior or measures of cognitive functioning showing

a functional impairment that would prevent Anderson from working.

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Anderson appealed again. His final appeal was handled by Cytec’s plan

administrator, Van Rensalier. She denied relief on July 10, 2006. Van

Rensalier’s letter to Anderson upheld Broadspire’s earlier denials for largely the

same reasons. In May 2006—while Anderson’s final appeal was pending—Cytec

terminated his employment.

Anderson’s mental health underwent a temporary but severe downturn

after Cytec’s final denial of his STDP claim. Auditory hallucinations that had

plagued him intermittently intensified, and Anderson voluntarily entered

inpatient treatment after recognizing signs of “homicidal ideation” toward his

former employer. He was released several days later, and he continued to attend

group therapy sessions.

In 2007, after retaining counsel, Anderson attempted to submit additional

materials to Cytec in further support of his STDP claim, including medical

records from July 2006 to early 2007 and two brief notes from Veterans Affairs

psychiatrists stating that Anderson was “completely unable to work” and “totally

disabled.” The evidence from the period after the denial of Anderson’s final

appeal is mixed: along with documentation of Anderson’s temporary breakdown,

it includes notations showing that Anderson stated he was hopeful that his

union representatives would “be able to make his case for him and get his job

back” and a complaint that he had lost his job “because he could not leave his

handicapped wife in Atlanta.” The post-denial medical records also include a

statement that Anderson was capable to return to work; Anderson claims that

this was a mistaken notation by an intern.5

5

The parties dispute whether these records and the two doctors’ notes should be

treated as part of the administrative record. The last records were not sent until almost one

year after Cytec’s final denial of Anderson’s claim. They were also never received by Cytec,

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After getting no response from Cytec, Anderson filed suit in September

2007. He brought claims for reinstatement of benefits pursuant to 29 U.S.C.

§ 1132(a)(1)(B) and breach of fiduciary duty pursuant to 29 U.S.C. §§ 1109(a)

and 1132(a)(2).6

The parties filed cross-motions for judgment on the administrative record.

After deciding to consider the administrative record as it stood at the time of

Anderson’s last appeal—and to ignore the additional material Anderson mailed

in afterwards—the district court found that the plan administrator did not abuse

her discretion in denying the disability benefits and dismissed the case.

Anderson timely appealed.

STANDARD OF REVIEW

This court reviews de novo the district court’s conclusion that an ERISA

plan administrator did not abuse its discretion in denying benefits, Crowell v.

Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008), and in doing so reviews the plan

administrator’s decision from the same perspective as the district court,

Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir.

1999). Where a benefits plan “gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the terms of the

plan,” as the STDP does here, the reviewing court applies an abuse of discretion

standard to the plan administrator’s decision to deny benefits. Firestone Tire &

due in part to confusion about whom the documents should have been mailed to—confusion

engendered largely by Cytec. The district court did not include the documents sent to Cytec

in 2007 as part of the administrative record. Because we hold that Cytec did not abuse its

discretion, even considering the “extended” administrative record, we have no need to decide

whether the late-submitted documents were properly part of the administrative record.

6

Anderson does not contest the district court’s dismissal of his cause of action for

breach of fiduciary duty.

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Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see Vega v. Nat’l Life Ins. Serv.,

Inc., 188 F.3d 287, 295 (5th Cir. 1999) (en banc), abrogated in part by Metro. Life

Ins. Co. v. Glenn, 554 U.S. 105 (2008). This is the functional equivalent of

arbitrary and capricious review: “[t]here is only a semantic, not a substantive,

difference between the arbitrary and capricious and the abuse of discretion

standards in the ERISA benefits review context.” Meditrust Fin. Servs., 168

F.3d at 214 (quotation omitted). A decision is arbitrary if it is “made without a

rational connection between the known facts and the decision.” Id. at 215

(quotation omitted). This court owes no deference, however, to an

“administrator’s unsupported suspicions.” Vega, 188 F.3d at 302.

In addition to not being arbitrary and capricious, the plan administrator’s

decision to deny benefits must be supported by substantial evidence. Ellis v.

Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004).

Substantial evidence is more than a scintilla, less than a

preponderance, and is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.

Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007)

(quotations omitted); see also Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337,

342 (5th Cir. 2002) (stating that the administrator’s decision must be “based on

evidence, even if disputable, that clearly supports the basis for its denial”

(quotation omitted)). “Ultimately, [this court’s] review of the administrator’s

decision need not be particularly complex or technical; it need only assure that

the administrator’s decision fall[s] somewhere on a continuum of

reasonableness—even if on the low end.” Corry, 499 F.3d at 398 (quotation

omitted).

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Finally, the court must take into consideration the conflict of interest

inherent in a benefits system in which the entity that pays the benefits—here,

Cytec—maintains discretionary control over the ultimate benefits decision. See

Glenn, 128 S. Ct. at 2348–51; Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240,

247 n.3 (5th Cir. 2009). In Holland, we explained that the Supreme Court’s

decision in Glenn “directly repudiated the application of any form of heightened

standard of review to claims denials in which a conflict of interest is present.”

576 F.3d at 247 n.3. Instead, this court weighs the structural conflict as one of

the many factors relevant to the benefits determination decision. Glenn, 128 S.

Ct. at 2351. Like the plaintiff in Holland, Anderson has not come forward with

any evidence that Cytec’s conflict of interest influenced its benefits decision. See

576 F.3d at 249. Additionally, Cytec employed a third-party benefits

administrator that consulted independent experts in reviewing Anderson’s

claim. Although the facts here are different from those in Holland, we agree

with Cytec that any conflict of interest is not a significant factor. See id.

DISCUSSION

A. Cytec’s decision to deny benefits

As a claimant under § 1132(a)(1)(B), Anderson bore “the initial burden of

demonstrating . . . that [the] denial of benefits under an ERISA plan [was]

arbitrary and capricious.” Perdue v. Burger King Corp., 7 F.3d 1251, 1254 n.9

(5th Cir. 1993). We conclude that he failed to do so.

The evidence Anderson presented to Cytec and to Cytec’s third-party

benefits administrator while they were considering his STDP application and

subsequent appeals was, as the district court correctly characterized it, mixed.

Broadspire’s two independent experts reviewed evidence supporting a diagnosis

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of PTSD that had been aggravated by the trauma of Anderson’s experience in

the aftermath of Hurricane Katrina. That evidence consisted of both self-

reported symptoms and the observations of Anderson’s treating physician, nurse,

and therapist. The reviewing experts did not question the PTSD diagnosis or

downplay the significance of Anderson’s self-reported symptoms of depression,

persistent nightmares, flashbacks, hallucinations (which he reported during

early visits but repeatedly denied in most subsequent visits), and anxiety, or the

observation that Anderson’s concentration was “impaired.”

Also in the administrative record, however, is evidence that Anderson had

been able to work while managing his PTSD symptoms, pre-Katrina, through

medication and therapy; statements by Anderson that he could not return to

New Orleans and to his job because he could not find suitable housing for his

wife; a nearly four-week gap between Anderson’s evacuation to Atlanta and his

first date of treatment (during which time Anderson was without his

medication); some evidence that Anderson’s situation improved at least

marginally after he began treatment; and numerous treatment notes from

Anderson’s therapist describing his judgment and insight as fair and his thought

processes and memory as intact. In light of these facts, it was not unreasonable

for Cytec to request an initial review by an independent expert or to require

Anderson to support his claim with regular updates. Nor was it unreasonable

to ask for some objective showing that Anderson’s PTSD-related disability

prevented him from performing his job.

Cytec also did not abuse its discretion by relying on the independent

experts’ opinion that Anderson had not offered objective clinical proof showing

the functional effect of his PTSD. Like the experts in Corry v. Liberty Life

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Assurance Company of Boston, the experts on which Cytec relied took into

consideration Anderson’s subjective complaints and the conclusions of his

doctors. See 499 F.3d at 401. But, also as in Corry, the experts here were not

required to accept the opinion of Anderson’s treating physician that his

symptoms rendered him incapable of performing his job. See id. This was

neither arbitrary nor an abuse of discretion: “the administrator, under the

established standard of review that restricts the courts, was not obliged to accept

the opinion of [Anderson’s] physicians. In this ‘battle of the experts’ the

administrator is vested with discretion to choose one side over the other.” Id.;

see also Simoneaux v. Cont’l Cas. Co., 101 F. App’x 10, 12 (5th Cir. 2004)

(“Continental was neither irrational nor arbitrary in failing to give overriding

weight to the treating physician’s statement that [the claimant] was totally

disabled, a generalized statement not supported by objective medical findings.”).

Anderson’s case does bear some factual similarity to Martin v. SBC

Disability Income Plan, an unpublished decision in which this court reversed the

district court’s judgment in favor of a plan administrator. 257 F. App’x 751 (5th

Cir. 2007). The plan administrator had rejected the claim of a benefits applicant

disabled by psychiatric problems, citing the applicant’s failure to submit

“objective clinical findings to support [her] inability to perform [her] essential job

duties” and an alleged absence of “findings from a formal mental status

examination.” Id. at 754. In Martin, however, the applicant’s doctor had

administered a Minnesota Multiphasic Personality Inventory-II test before

diagnosing the applicant and described the applicant as “appearing barely able

to function, and only able to perform the most basic activities of daily living”; the

applicant was also hospitalized for three weeks after a suicide attempt. Id. at

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752–53. Unlike the applicant in Martin, Anderson was able to function day-to-

day with the help of therapy and prescription drugs; he was also helping to care

for his wheelchair-bound wife. We do not find a lack of rational connection

between the facts and the denial decision here. The independent experts did not

misread Anderson’s record or dismiss his complaints out of hand. Like the

experts in Corry, they simply found it insufficient to support a total disability.

Both denial letters from Broadspire made it clear that Anderson needed to

submit objective clinical findings to support his claim of total disability.

That request for additional information was not unjustified. A plan

administrator does not abuse its discretion by making a reasonable request for

some objective verification of the functional limitations imposed by a medical or

psychological condition, especially when the effects of that condition are not

readily ascertainable from treatment and therapy notes—as in this case and

analogous cases involving, for example, chronic fatigue syndrome. Accord

Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007) (“A distinction

exists . . . between the amount of fatigue or pain an individual experiences,

which . . . is entirely subjective, and how much an individual’s degree of pain or

fatigue limits his functional capabilities, which can be objectively measured.”);

Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 16–17 n.5 (1st Cir. 2003)

(finding an insurance company not unreasonable when it “was willing to accept

that [the claimant] suffered from the illnesses she reported to her doctors. . . .

[but] wanted objective evidence that these illnesses rendered her unable to

work.”). Without some objective measurement of Anderson’s functional

limitations, Cytec had no way to determine whether his concentration was

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impaired to the point that he could not perform his job or “any similar

occupation which his Employer may provide.”

Between the time his STDP benefits were first cut off and the time he was

fired—at which point he was no longer eligible for STDP benefits—Anderson did

not submit cognitive testing results or any clinical documentation other than

group therapy notes. He also did not have Dr. Saldivia or another treating

physician reaffirm to Cytec that he continued to be unable to work, even though

the record indicates that he knew Cytec would “require monthly updates” on his

status, as the STDP plan allowed it to do. Anderson has not argued that he

could not have obtained the kind of tests for functional cognitive disability that

the denial letters made clear he would need. In his brief, Anderson asserts that

he “attempted as best he could to comply with Cytec’s stated appeal

requirements.” He explains that he “was under the apparent understanding and

belief that his treating physicians were providing information to Cytec

supporting his ongoing mental disability,” but concedes that they were not.

While this is highly unfortunate, Cytec is not to blame for the lack of

documentation it was within its rights to request.7

The second question is whether Cytec’s decision is supported by

substantial evidence—i.e., “more than a scintilla, less than a preponderance” of

relevant evidence. Corry, 499 F.3d at 397–98. As explained above, the evidence

from the period when Anderson was eligible for STDP benefits is mixed: it does

7

Anderson also notes, in his reply brief, that it would be appropriate to “return to the

administrative process and have his physicians address, clarify and definitively confirm his

longstanding, ongoing and permanently disabling mental disability.” Again, while we

sympathize with the extraordinarily difficult situation in which Anderson found himself, Cytec

did not abuse its discretion by asking him to submit evidence “definitively confirm[ing]” his

alleged total disability while his application was pending.

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not compel either a finding of total disability or a finding that Anderson could

perform his work in spite of his disability. Additionally, Cytec relied on analyses

by two independent experts, both of whom opined that the evidence did not,

without more, support a finding of total disability. Here, as in Corry, the

opinions of Cytec’s experts, “each of whom are specialists and qualified experts

in fields specifically related to [Anderson’s] symptoms, constitute substantial

evidence” supporting Cytec’s STDP determination. Corry, 499 F.3d at 402.

Finally, Anderson argues that Cytec should not have relied on two experts

who did not hold M.D. degrees and who did not personally examine him. He

provides no support for the proposition that, in an ERISA case that turns on a

patient’s mental status, an expert evaluation by a Ph.D. or Psy.D. psychologist

is less probative than that of an M.D. psychiatrist. The argument is baseless;

courts regularly consider the expert testimony of psychologists, and parties often

introduce competency reports and mental health assessments prepared by both

a psychiatrist and a psychologist. See, e.g., United States v. Palmer, 507 F.3d

300, 301–02 (5th Cir. 2007); Mata v. Johnson, 210 F.3d 324, 328 (5th Cir. 2000).

That the independent experts reviewed Anderson’s records but did not examine

him personally also does not invalidate or call into question their conclusions.

In Black & Decker Disability Plan v. Nord, the Supreme Court held that plan

administrators are not required to give special deference to the opinions of

treating physicians. 538 U.S. 822, 831 (2003); see also Vercher v. Alexander &

Alexander, Inc., 379 F.3d 222, 233 (5th Cir. 2004).

Under these circumstances, Cytec’s decision that Anderson was not

“totally disabled” was not arbitrary and capricious and was supported by

substantial evidence.

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B. Additional evidence submitted after the final appeal

The parties dispute whether information Anderson mailed to Cytec’s third-

party benefits administrator in 2007—treatment notes that begin in July 2006,

after the denial of his final appeal, and two doctor’s letters written in January

2007—should have been included in the administrative record. Anderson argues

that the additional material buttresses his benefits claim. Cytec argues that it

should not be included in the record and that, in any event, the additional

information is irrelevant.

In ERISA cases, courts generally cannot consider evidence outside the

administrative record.8 Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 395 n.3

(5th Cir. 2006). In Vega v. National Life Insurance Services, Inc., this court,

sitting en banc, stated that if a claimant “submits additional information to the

administrator . . . and requests the administrator to reconsider his decision, that

additional information should be treated as part of the administrative record.”

188 F.3d at 300. The Vega court summarized its holding as follows: “the

administrative record consists of relevant information made available to the

administrator prior to the complainant’s filing of a lawsuit and in a manner that

gives the administrator a fair opportunity to consider it.” Id. Subsequent panels

of this court and several district courts within the circuit have wrestled with this

language from Vega, which could be read to allow claimants to add material to

the administrative record long after exhausting their final administrative

appeal, even without a showing that the evidence was unavailable to them while

8

There are limited exceptions to the general rule. See, e.g., Estate of Bratton v. Nat’l

Union Fire Ins. Co. of Pittsburgh, Pa., 215 F.3d 516, 521 (5th Cir. 2000). None apply here.

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their administrative appeal was pending or that they made a good-faith effort

to discover or submit the information during the administrative process.9

Because the late-submitted information is either cumulative of the earlier

evidence or largely irrelevant to Anderson’s claim for STDP benefits, we need not

address the thorny timing issues posed by Vega. Assuming arguendo that the

materials submitted in 2007 could have been part of the administrative record,

we do not deviate from our holding that the administrator’s decision was not an

abuse of discretion.

First, the clinicians’ notes and progress reports on Anderson’s mental

health after his final appeal was denied are weakly relevant, at best, to his

mental health during the time period at issue—from September 2005, when

Anderson first sought treatment, to May 2006, when he was terminated by

9

See Corry, 499 F.3d at 398 n.12 (holding that, under Vega, affidavits submitted after

a final administrative appeal but more than one year before the claimant filed her federal suit

were properly considered part of the administrative record); Keele v. JP Morgan Chase Long

Term Disability Plan, 221 F. App’x 316, 319–20 (5th Cir. 2007) (noting Vega’s departure from

prior circuit caselaw and discussing some of the questions left unanswered by the decision

(quoting Needham v. Tenet Select Benefit Plan, 2004 WL 193131, at *7 (E.D. La. Jan. 30, 2004)

(unpublished)); Schaffer v. Benefit Plan of Exxon Corp., 151 F. Supp. 2d 799, 809 (S.D. Tex.

2001) (declining to consider late-submitted evidence as part of the administrative record).

Indeed, Vega could be read to require ERISA administrators to keep the administrative record

open, and to continually consider new information submitted by claimants who have already

exhausted the administrative appeals process, almost indefinitely. Such a policy would be a

marked change from this court’s pre-Vega rule, under which the administrative record

“consisted of those documents before the administrator at the time the claims decision was

made.” Keele, 221 F. App’x at 320. It would also make this circuit’s administrative record law

more expansive than that of the rest of the circuits. Cf. Majeski v. Metro. Life Ins. Co., 590

F.3d 478, 483 (7th Cir. 2009) (describing Vega as “an outlier whose reasoning does not stand

on firm ground”); Liston v. UNUM Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003)

(noting that “virtually all of the circuits” share the view “that the record on review is limited

to the record before the administrator,” “with the possible exception of the Fifth Circuit”

(citing, inter alia, Wildbur v. ARCO Chem. Co., 974 F.2d 631, 636–42 (5th Cir. 1992)).

Notably, Vega cited Wildbur for an even more expansive extension of the administrative record

than what Liston considered to be outside the mainstream.

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No. 09-30333

Cytec, which made him ineligible for STDP benefits. Reports about Anderson’s

mental health after his eligibility for STDP benefits expired—reports that were

not before the independent experts or the plan administrator while they

considered his appeals—could not have factored into Cytec’s decision to deny

benefits, and therefore are not directly relevant to the question whether Cytec

abused its discretion by denying Anderson’s claim.10

Second, the two doctors’ letters that Anderson submitted—both dated

January 17, 2007—do not change the analysis. One, from a psychiatry resident

who the record does not show treated Anderson during any part of the relevant

time period, contains little more than the conclusory statements that Anderson

“is completely unable to perform work because of his disability since Sept 2005”

and is “totally disabled and will be unable to work indefinitely.” The second

letter is from a psychiatrist who is not shown as treating Anderson elsewhere in

the record. It lists his symptoms and states that they “prevent him from

performing salient duties of his job as panel board operator or any similar

occupation” and that they “are severe enough to warrant complete disability and

10

This is not to say that the evidence has no relevance to Anderson’s pre-May 2006

mental state at all. A breakdown may provide some post hoc evidence that an individual’s pre-

breakdown mental health was precarious. But treating such evidence as relevant to the

decision we review here assumes that Cytec should have voided its earlier denial in light of

events that occurred after it terminated Anderson’s employment. Such a decision would have

required Cytec to make any number of speculations about the arc of Anderson’s mental health

status, the relative weight of a short-lived intensification of PTSD symptoms, and whether

(and, if so, to what extent) such an increase in symptoms reveals anything about Anderson’s

ability to perform his job or a similar job during the relevant period. The company also would

have had to make a legal decision about whether the STDP allowed for a post-denial, post-

appeal benefits adjustment based on information that arose after the completed appeal. That

Cytec did not so speculate was not arbitrary or capricious. Additionally, as noted above, the

late-submitted clinical notes contained some evidence that favored Cytec, including notations

indicating that Anderson was attempting to get his job back and that he was eligible to return

to work.

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No. 09-30333

intensive treatment in our specialized PTSD clinic.” The second letter does not

aver that Anderson was unable to perform his job during the relevant period,

and it appears to misstate one of Anderson’s symptoms as “homicidal

ideation”—a symptom the record shows that he exhibited for, at most, several

days in July 2006.

The relevance and probative value of both letters is questionable. Only the

first and most conclusory letter asserts that Anderson was disabled in 2005 and

2006, and a doctor’s statement that an individual “is ‘totally disabled’ does not

suffice to establish disability under the language of the [STDP], a determination

which is a legal conclusion left to the Plan administrator.” Cooper v. Hewlett-

Packard Co., 592 F.3d 645, 656 (5th Cir. 2009). Even if the letters were more

clearly relevant to the issue before the court, they would not serve as anything

more than additional expert opinions. And as established above, Cytec was not

obliged to accept the opinions of Anderson’s treating physicians. See Corry, 499

F.3d at 401.

Thus, while we do not endorse Cytec’s decision to deny benefits as

obviously correct, we cannot say that it was an abuse of discretion. See Gothard

v. Metro. Life Ins. Co., 491 F.3d 246, 250 (5th Cir. 2007). The circumstances of

this case are sad and unfortunate. Dennis Anderson served this nation in two

wars and undoubtedly faces a difficult disability as a result of that service. But

Cytec was entitled to require some evidence of the functional impact of his

disability; it did not abuse its discretion by denying further benefits in the

absence of such evidence.

CONCLUSION

The district court’s judgment in favor of Cytec is AFFIRMED.

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