Mitchell v. Eastman Kodak Co

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

5-8-1997

Mitchell v. Eastman Kodak Co

Precedential or Non-Precedential:

Docket 96-7034

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Filed May 8, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7034

GEORGE W. MITCHELL

v.

EASTMAN KODAK COMPANY

Appellant

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil Action No. 93-cv-00840)

Argued: October 24, 1996

Before: STAPLETON and NYGAARD, Circuit Judges,

MAZZONE,* District Judge

(Opinion Filed May 8, 1997)

Thomas E. Wood (Argued)

Keefer, Wood, Allen & Rahal

210 Walnut Street

P.O. Box 11963

Harrisburg, PA 17108-1963

Attorney for Appellant

_________________________________________________________________

* Hon. A. David Mazzone, United States District Judge for the District

of Massachusetts, sitting by designation.

Timothy J. O'Connell (Argued)

Turner & O'Connell

258 North Street

P.O. Box 1123

Harrisburg, PA 17108

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this case, we are asked to decide whether the denial of

a claim for benefits under a Long-Term Disability Plan

governed by the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C. §§ 1001 et seq., by a Plan participant

suffering from Chronic Fatigue Syndrome ("CFS") was

arbitrary and capricious. We hold that, in the

circumstances present here, it was. We will therefore affirm

the district court's grant of summary judgment in favor of

the Plan participant.

I. Facts

George Mitchell ("Mitchell"), then an employee of

Eastman Kodak Company ("Kodak"), first began suffering

from persistent coughs, sore throats, fever, and extreme

fatigue in the fall of 1988. He consulted a family physician

and an infectious disease specialist, but neither could find

any medical explanation for his persistent fatigue and other

symptoms. On January 30, 1989, Dr. Gerald Gordon of the

Geisinger Medical Center diagnosed Mitchell with "chronic

fatiguing illness," not explained by any "clear infectious

cause." The intermittent flu-like symptoms and chronic

overwhelming fatigue persisted.

As a result of his chronic fatigue, Mitchell stopped

working in January 1989. He received short-term disability

benefits from Kodak until June 26, 1989, when his

eligibility for short-term benefits expired. Mitchell then

applied for long-term disability benefits under Kodak's

Long-Term Disability Plan (the "Plan"), an "employee welfare

benefit plan" governed by ERISA. According to the terms of

the Plan, a participant is eligible to receive long-term

2

disability ("LTD") benefits if he, inter alia, suffers from a

disability that renders him "totally and continuously unable

to engage in any substantial Gainful Work1 for which he is,

or becomes, reasonably qualified by education, training, or

experience." Plan § 2.06, App. at 12.2

Metropolitan Life Insurance ("MLI"), the claims

administrator under the Plan, reviewed Mitchell's medical

records and denied his claim for LTD benefits in September

1989. Mitchell sought reconsideration, and MLI affirmed

the denial of benefits. In accordance with the terms of the

Plan, Mitchell appealed MLI's decision to the Plan

Administrator at Kodak. After reviewing Mitchell's claim file,

the Administrator affirmed the denial of benefits on the

ground that Mitchell had failed to provide "objective medical

evidence that [his] condition made [him] totally and

continuously unable to engage in any substantial gainful

work for which [he was] qualified as of June 26, 1989."

Letter of January 17, 1992, App. at 24.

Mitchell then brought this ERISA action to challenge the

Administrator's decision under 29 U.S.C. § 1132(a)(1)(B),

which allows an ERISA plan participant to bring a civil

action to recover benefits due him under the terms of the

plan. Mitchell alleged that he suffered from a disability as

defined in the Plan as of June 26, 1989, and thus was and

is entitled to LTD benefits under the Plan.

Mitchell and Kodak filed cross-motions for summary

judgment. Although both parties had assumed that the

district court would review the Administrator's denial of

Mitchell's claim under an "arbitrary and capricious"

standard, the court instead conducted a de novo review

_________________________________________________________________

1. "Gainful Work is paid employment." Plan § 2.11, App. at 13.

2. The Plan also requires that a participant seeking LTD benefits (1) have

one year of continuous or adjusted service before the last day worked

before the onset of disability; (2) have not reached normal retirement

date; (3) have a disability that did not result from an act of war or

participation in an insurrection, rebellion, or riot; (4) apply for Primary

Social Security Disability Insurance Benefits; and (5) remain under the

care of a licensed physician. Plan § 4.01, App. at 16-17. There is no

dispute that Mitchell met all of these requirements when he applied for

benefits.

3

because the copy of the Plan submitted by the parties3

contained no language granting the Administrator

discretion to determine a Plan participant's eligibility for

benefits. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101 (1989); Luby v. Teamsters Health, Welfare and Pension

Trust Funds, 944 F.2d 1176 (3d Cir. 1991). The court found

that the evidence clearly showed that Mitchell was suffering

from CFS in June 1989, but was insufficient to

demonstrate that his CFS rendered Mitchell totally unable

to engage in any substantial gainful work at that time. The

court also concluded, however, that there was insufficient

evidence to find that Mitchell was not totally disabled by

his CFS. To resolve the issue, the court remanded the

matter to the Administrator for reconsideration after

supplementation of the record with additional information

on Mitchell's ability to engage in gainful work on June 26,

1989.

On remand, Mitchell submitted to the Administrator a

letter from his physician, Dr. Nelson Gantz, dated August

18, 1994, which explained how Mitchell's persistent CFS

symptoms rendered him unable to engage in any

substantial gainful work. After reviewing this supplemental

information "and again reviewing the entirety of the claims

administrator's file," the Administrator reaffirmed his denial

of Mitchell's claim for LTD benefits. Letter of Apr. 12, 1995,

App. at 192-93. The Administrator insisted that Dr. Gantz's

letter, which was written in the present tense, "failed to

shed any new light on Mr. Mitchell's condition as of June

26, 1989." Id. at 193. The Administrator concluded, once

again, that Mitchell "ha[d] failed to provide any objective

medical evidence that his condition made him totally and

continuously unable to engage in any substantial gainful

work for which he was qualified as of June 26, 1989." Id.

Mitchell then filed with the district court a Petition to Re-

Open Motion for Summary Judgment. Kodak, in opposition

_________________________________________________________________

3. Mitchell attached a copy of the Plan dated January 1, 1990 to his

Complaint filed May 7, 1993. In its Answer, Kodak "admit[ted] that the

copy attached to the complaint is a true and correct copy of the Plan."

Defendant's Answer ¶ 4, App. at 25-26. In fact, the Plan had been

amended effective April 14, 1991.

4

to the Petition, submitted 1991 Plan Amendments that

granted the Administrator "discretionary authority to

determine all questions arising in the administration,

interpretation and application of the plan" and argued that

the Amendments, which had been in effect when the

Administrator finally denied Mitchell's claim in January

1992, precluded the district court from reviewing the

Administrator's decision de novo. The district court,

although recognizing that the Plan Amendments indeed

granted the Administrator discretionary authority to

administer the Plan, again conducted a de novo review. The

court interpreted this court's decision in Luby v. Teamsters

Health, Welfare and Pension Trust Funds, 944 F.2d 1176

(3d Cir. 1991), to require de novo review of all fact-based

decisions by ERISA plan administrators. Dec. 14, 1995 Op.

at 9-11. Pursuant to its de novo review, the court granted

summary judgment for Mitchell on the ground that the

undisputed evidence demonstrated that Mitchell suffered

from CFS that rendered him totally unable to engage in any

substantial gainful work as of June 26, 1989 and that he

was therefore entitled to LTD benefits under the Plan.

Kodak appeals the grant of summary judgment, challenging

both the district court's de novo review of the

Administrator's decision and its conclusion that Mitchell

was totally disabled as of June 26, 1989.

The district court had jurisdiction over this action under

29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331. We have

jurisdiction over the appeal from the district court's grant of

summary judgment pursuant to 28 U.S.C. § 1291. Our

review of the district court's grant of summary judgment is

plenary, and we apply the same test that the district court

should have applied in the first instance. Bixler v. Central

Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1297

(3d Cir. 1993).

II. Discussion

Kodak challenges the district court's de novo review of

the Plan Administrator's decision and argues that the court

should have affirmed the Administrator's decision under

the "arbitrary and capricious" standard. Alternatively,

Kodak asserts that even under de novo review, the district

5

court should have affirmed the Administrator's decision.

Mitchell, on the other hand, argues that de novo review was

appropriate, and, alternatively, that even under the

"arbitrary and capricious" standard of review he is entitled

to summary judgment. We agree with Kodak that the

"arbitrary and capricious" standard is applicable here, but

we also find that the Administrator's decision should be

overturned even under that deferential standard.

A. Standard of Review

ERISA does not set out the standard of review for an

action brought under § 1132(a)(1)(B) by a participant

alleging that he has been denied benefits to which he is

entitled under a covered plan. However, in Firestone Tire &

Rubber Co. v. Bruch, the Supreme Court addressed the

question of the appropriate standard for actions challenging

"denials of benefits based on plan interpretations." 489 U.S.

101, 108 (1989). The Court held that "a denial of benefits

challenged under § 1132(a)(1)(B) is to be reviewed under a

de novo standard unless the benefit plan gives the

administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of

the plan." Id. at 115. Where the plan affords the

administrator discretionary authority, the administrator's

interpretation of the plan "will not be disturbed if

reasonable." Id. at 111.4

_________________________________________________________________

4. The Court also noted that "if a benefit plan gives discretion to an

administrator or fiduciary who is operating under a conflict of interest,

that conflict must be weighed as a `facto[r] in determining whether there

is an abuse of discretion.' " Id. (quoting Restatement (Second) of Trusts

§ 187, Comment d (1959)). No conflict of interest is present here.

Although the Plan is self-insured, the Plan assets are administered by a

trustee pursuant to a trust agreement that provides that funds "may not

be used for any purpose other than for the exclusive benefit of persons

entitled to benefits under the Plan and for reasonable expenses of

administering the Plan." Plan § 8.01. Therefore, because Kodak "incurs

no direct expense as a result of the allowance of benefits, nor does it

benefit directly from the denial or discontinuation of benefits," Abnathya

v. Hoffman-LaRoche, Inc., 2 F.3d 40, 45 n.5 (3d Cir. 1993), there is no

conflict of interest sufficient to justify heightened review of the

Administrator's decision.

6

In Luby v. Teamsters Health, Welfare, and Pension Trust

Funds, we held that Firestone's de novo standard of review

applies to decisions based on plan administrators' factual

determinations as well as decisions based on their

interpretations of the terms of the plan. 944 F.2d 1176,

1183-84 (3d Cir. 1991). We agreed with the Seventh Circuit

that "the Court [in Firestone] intended de novo review where

administrators were not granted discretion, regardless of

whether the denials under review were based on plan

interpretations." Id. at 1183 (quoting Petrilli v. Drechsel, 910

F.2d 1441, 1446 (7th Cir. 1990)). We were

not convinced by the rationale of ... courts [of appeals]

holding that administrator's [sic] factual

determinations should be subject to deferential review.

Plan administrators are not governmental agencies who

are frequently granted deferential review because of

their acknowledged expertise. Administrators may be

laypersons appointed under the plan, sometimes

without any legal, accounting, or other training

preparing them for their responsible positions, often

without any experience in or understanding of the

complex problems arising under ERISA, and ... little

knowledge of the rules of evidence or legal procedures

to assist them in factfinding.

Id. Thus, we concluded that, like plan administrators'

decisions based on plan interpretations, "[an] ERISA plan

administrator's fact-based determinations are to be

reviewed de novo unless the plan specifically provides that

his determinations of fact be given deference or grants the

administrator the authority to make determinations

between death benefit claimants." Id. at 1187.

The district court mistakenly relied on Luby to hold that,

although the Kodak Plan "plainly vests discretionary

authority in the plan administrator," Dec. 14, 1995 Op. at

8, de novo review of the denial of Mitchell's claim was

appropriate because the denial was "based solely on [a]

factual determination[ ]" of whether Mitchell was totally

disabled at the time he applied for LTD benefits. Id. at 9. As

we have explained, Luby did not hold that district courts

must exercise de novo review over all factual

determinations by ERISA plan administrators. Rather, it

7

held that de novo review of factual determinations, like plan

interpretations, is appropriate if the plan does not grant the

plan administrator discretion to make those determinations.

Thus, the appropriate standard of review here depends on

"whether the terms of this Plan grant the Administrator

discretion to act as a finder of facts" to decide whether

Mitchell was "totally disabled" by CFS on June 26, 1989,

the date as of which he applied for LTD benefits. See Luby,

944 F.2d at 1180.

Section 8.03 of the Plan provides:

In reviewing the claim of any participant, the Plan

Administrator shall have full discretionary authority to

determine all questions arising in the administration,

interpretation and application of the plan. In all such

cases, the Plan Administrator's decision shall be final

and binding upon all parties.

Giving this language its ordinary meaning, we conclude

that the broad grant of discretionary authority to the

Administrator is sufficient to preclude de novo review of

both interpretative and factual determinations made in the

course of applying the benefit provisions of the Plan to a

particular application for benefits. Because fact-based

determinations of eligibility for LTD benefits are certainly

one of the "questions arising in the administration,

interpretation and application of the plan," and the

Administrator's decisions regarding such questions are

"final and binding," the Plan clearly provides that eligibility

determinations are to be afforded deference.5

_________________________________________________________________

5. Our conclusion is consistent with our circuit jurisprudence. See, e.g.,

Nazay v. Miller, 949 F.2d 1323 (3d Cir. 1991) (applying arbitrary and

capricious standard to plan administrator's fact-based decision not to

waive penalty provision where plan provided administrator with

"discretion and authority to interpret and construe the provisions of the

Plan, to determine eligibility to participate in the Plan, ... and to decide

such questions as may arise in connection with the operation of the

Plan"); Stoetzner v. United States Steel Corp., 897 F.2d 115 (3d Cir. 1990)

(applying arbitrary and capricious standard to administrator's denial of

pension and severance benefits on basis of factual determination that

claimants were afforded comparable pension benefits after sale of plan

sponsor where plan provided that "[the administrator] shall ... decide all

8

Mitchell argues that the Administrator's authority to

determine questions arising in the "application" of the Plan

does not entitle his decisions to deference because it "is no

more than a vesting of authority to interpret the provisions

of the plan." Mitchell Br. at 5. We find this argument

untenable. First, § 8.03 specifically provides the

Administrator with the power of "interpretation," and if the

term "application" merely afforded that same power it would

be entirely superfluous. Second, we think that "application"

of the Plan, like judicial "application" of the law, must

encompass the resolution of factual disputes as well as the

interpretation of the governing provisions of the Plan. Thus,

we conclude that the Plan Administrator's decision to deny

Mitchell LTD benefits should be reviewed under an

arbitrary and capricious standard.

B. Denial of Benefits

Under the arbitrary and capricious standard, "the district

court may overturn a decision of the Plan administrator

only if it is `without reason, unsupported by the evidence or

erroneous as a matter of law.' " Abnathya v. Hoffman

LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (quoting Adamo

v. Anchor Hocking Corp., 720 F. Supp. 491, 500 (W.D. Pa.

1989)). "This scope of review is narrow, and`the court is

not free to substitute its own judgment for that of the

[administrator] in determining eligibility for plan benefits.' "

Abnathya, 2 F.3d at 45 (quoting Lucash v. Strick Corp., 602

F. Supp. 430, 434 (E.D. Pa. 1984)).

_________________________________________________________________

questions arising out of and relating to the administration of [the

plan].... The decisions of the [administrator] shall be final and conclusive

as to all questions of interpretation and application of [the plan] and to

all other matters arising in the administration thereof."); Scarinci v.

Ciccia, 880 F. Supp. 359 (E.D. Pa. 1995) (applying arbitrary and

capricious standard to administrator's mixed fact- and plan-

interpretation-based decision to deny short-term disability benefits under

plan that required employee to provide "satisfactory" evidence of

disability to administrator with discretionary authority "to ... determine

conclusively for all parties all questions arising in the administration of

the Plan").

9

1. The Plan

In determining whether the Plan Administrator's decision

to deny Mitchell LTD benefits was arbitrary and capricious,

we begin with the Plan itself, since an ERISA plan

administrator must "discharge his duties with respect to a

plan ... in accordance with the documents and instruments

governing the plan insofar as such documents and

instruments are consistent with the provisions of [ERISA]."

29 U.S.C. § 1104(a)(1)(D). Section 4.01 of the Plan provides

that in order to qualify for LTD benefits, a participant must,

inter alia, "[m]eet the definition of Disability in Section 2.06."6

Section 2.06 in turn provides:

"Disability" for the purpose of this Plan is a condition

fulfilling these requirements:

a) A Participant is totally and continuously unable

to engage in any substantial Gainful Work for which

he is, or becomes, reasonably qualified by education,

training, or experience, and

b) The disability:

1) has lasted for a continuous period of 26 weeks

inclusive of time during which Short-Term

Disability benefits and Workers Compensation

Income Replacement benefits were paid (except

where a Participant is involuntarily terminated

from the Employer as a result of a layoff, a

divestiture, or a special separation plan), or

2) has lasted for less than 26 weeks, but can

reasonably be expected to last for a total of at least

26 weeks, or

3) is expected to result in death.

LTD benefits under the Plan are not automatic, and a

claimant bears the burden of demonstrating that he

qualifies for benefits. See Plan §§ 4.01 and 4.02; Kodak

Employee Handbook, App. at 112. Thus, the Plan required

that Mitchell, in order to obtain LTD benefits, show that as

_________________________________________________________________

6. The other eligibility requirements are described supra, note 2.

Mitchell's satisfaction of those requirements is not in dispute.

10

of June 26, 1989, he was totally and continuously unable

to engage in any substantial gainful work for which he was

reasonably qualified.

2. Mitchell's Record Support

To determine whether Mitchell has carried his burden, we

look to the record as a whole. Cf. Smith v. Califano, 637

F.2d 968, 970 (3d Cir. 1981) (noting that court reviewing

denial of Social Security disability benefits "retain[s] a

responsibility to scrutinize the entire record and to reverse

or remand if the ... decision is not supported by substantial

evidence"). Under the arbitrary and capricious standard of

review, the "whole" record consists of that evidence that

was before the administrator when he made the decision

being reviewed. See Luby, 944 F.2d at 1184 n.8; Woolsey v.

Marion Laboratories, Inc., 934 F.2d 1452, 1460 (10th Cir.

1991); Voliva v. Seafarers Pension Plan, 858 F.2d 195, 196

(4th Cir. 1988). Here, because the Administrator made two

decisions--the January 17, 1992 denial that precipitated

this lawsuit and the April 12, 1995 re-affirmation of that

denial that preceded the district court's grant of summary

judgment and this appeal--there is some dispute regarding

what constitutes the "whole" record.

The January 17, 1992, letter communicating the

Administrator's initial decision to deny LTD benefits advised

Mitchell that if he had additional "objective medical

evidence that [he] was disabled within the meaning of [the

Plan] as of June 26, 1989," he should submit it and the

Administrator would "reopen [his] file." App. at 24.

Consistent with that position, Kodak does not ask us to

review and overturn the district court's order directing

reconsideration by the Administrator after an opportunity

to supplement the record. Nevertheless, Kodak asks us to

review the district court's subsequent judgment of

December 14, 1995, directing payment of benefits, on the

basis of the record as it existed before supplementation. We

decline to do so. In the absence of a successful attack on

the order requiring reconsideration, our only appropriate

course is to review the district court's December 14, 1995,

judgment based on the legally relevant record then before

it. Given our conclusion that the district court should have

11

asked only whether the Administrator's denial was arbitrary

and capricious, on the basis of the record before the

Administrator, this means that the relevant record on

appeal is the evidence before the Administrator at the time

of his final denial on April 12, 1995.

The undisputed evidence in his claim file as of April 12,

1995, shows that as of June 26, 1989, Mitchell's chronic

and unpredictable fatigue and loss of concentration made it

impossible for him to sustain regular paid employment.

Mitchell's medical records indicate that he began

complaining of fatigue, fever, a persistent cough, and other

flu-like symptoms in the fall of 1988. An infectious disease

specialist diagnosed Mitchell with "chronic fatiguing illness"

in January 1989, and Physician's Statements submitted in

support of Mitchell's claim in June 1989, May 1990, and

July 1990 all indicated that Mitchell suffered from chronic

fatigue. Although the doctors who completed the two earlier

Statements expressed uncertainty regarding whether

Mitchell's fatigue rendered him "totally disabled," the third

clearly stated that Mitchell was "totally disabled" from

gainful employment because of his CFS.7 In 1991, the

Social Security Administration agreed with that conclusion,

awarding Mitchell Social Security Disability benefits after

comprehensively reviewing his medical history and

concluding that "[t]he medical evidence establishes that the

claimant has severe chronic fatigue syndrome with Epstein-

Barr Virus" and that he "lacks the residual functional

_________________________________________________________________

7. Kodak contends that the July 1990 Physician's Statement is

unreliable because it is internally inconsistent, indicating that Mitchell

suffered only "No Limitation" or "Some Limitation" in performing

activities such as sitting, standing, pushing, pulling, and spoken and

written communication, but that he was nonetheless totally disabled

from any occupation. We do not find this "inconsistency" dispositive. It

seems to us to be attributable largely to the inappropriateness of the

Physician's Statement form for evaluating disability resulting from CFS.

CFS does not disable an individual afflicted with it from performing

particular, isolated activities, but rather prevents him from performing

all activities for any prolonged period of time. Thus, it is not inconsistent,

given the characteristics of CFS, for Mitchell's doctor to conclude that

Mitchell was totally unable to engage in substantial gainful activity, even

though his ability to perform isolated activities such as standing,

pushing, pulling, and communicating was only "somewhat" limited.

12

capacity to perform the physical exertion and nonexertional

requirements of work." App. at 136.

By 1993, Mitchell was under the care of Dr. Nelson

Gantz, a doctor familiar with CFS. On September 21, 1993,

Dr. Gantz wrote a letter to the Plan Administrator

diagnosing Mitchell's CFS and describing his symptoms:

In my opinion [ ]his illness had an acute onset and my

impression is that Mr. Mitchell has chronic fatigue

syndrome.

The treatment for chronic fatigue syndrome is

symptomatic and the prognosis is unknown. Based on

these last two items and his symptomatology it would

make him physically incapable of increased or

sustained activities. He cannot keep a regular schedule

because of his constant fatigue and his loss of

concentration.

Based on Mr. Mitchell's history, it is my opinion his

acute onset developed in October 1988. Since chronic

fatigue syndrome is a disease of exclusion, Mr. Mitchell

has been extensively worked up in the past and in this

office ....

App. at 165-66.

On August 18, 1994, Dr. Gantz wrote another letter that

clarified how Mitchell's symptoms of "fatigue, fevers, joint

pain, muscle pain, sore throats, markedly decreased

concentration, headaches, muscle weakness and occasional

sleep problems" disabled him from all substantial gainful

activity:

The frequency and severity of symptoms in patients

with the Chronic Fatigue Syndrome vary greatly and

can wax and wane. There is no pattern to the cycle,

and unfortunately it is difficult to say when he will

have good days or bad days.... At present, restricting

activities is the only way to prevent exacerbation of his

CFS symptoms. He is capable of only mild, intermittent

activities. His ability to sustain any activity, even for a

few hours, is unpredictable.... I feel that Mr. Mitchell is

100% disabled at this time and work for him is out of

the question.

13

Letter of Aug. 18, 1994, App. at 191. Dr. Gantz's letters,

taken together with the earlier records of Mitchell's

persistent CFS symptoms, support the proposition that

Mitchell began suffering acute CFS symptoms in the fall of

1988, and that his symptoms rendered--and continue to

render--him incapable of sustaining prolonged activities,

including any gainful employment. There is no evidence to

the contrary.

Kodak argues that because Mitchell's records contain no

explicit doctor's statement that "Mitchell was totally

disabled as of June 26, 1989," they fail to establish that

Mitchell was in fact "totally disabled" by CFS on June 26,

1989. Although it is true that the records lack such an

explicit statement, we conclude that that alone does not

support the Administrator's conclusion that Mitchell failed

to show total disability as of June 26, 1989. The

undisputed reports from Mitchell's treating physicians show

that he began suffering CFS symptoms well before June

1989, and Dr. Gantz's letter of August 18, 1994 clearly

explains how those symptoms rendered Mitchell totally

disabled from gainful work.

Moreover, Mitchell's treating physicians' early difficulty

diagnosing Mitchell's CFS and understanding how it

disabled him from work do not support the Administrator's

conclusion. Mitchell's CFS symptoms have remained

consistent since before June 1989 and later, undisputed

evidence from a doctor more knowledgeable about the

diagnosis and symptomatology of CFS clearly supports

Mitchell's contention that CFS has rendered him totally

unable to engage in any substantial gainful work since

January 1989. As the Tenth Circuit explained in Sisco v.

United States Dep't of Health & Human Services, in which

the patient's CFS had gone undiagnosed from 1983 to

1989,

[u]nder the facts of this case, the early examinations

cannot be considered as contradicting or rebutting

[Plaintiff 's] recent diagnosis.... [C]hronic fatigue

syndrome was not even recognized as a disease until

1988, and the first technique to diagnose it was not

published until that same year.... It is highly unlikely

that any of the physicians who examined Plaintiff prior

14

to the Mayo Clinic [which diagnosed her] would have

considered or even been aware of chronic fatigue

syndrome. The government has not cited to a single

physician who examined Plaintiff after the Mayo Clinic

or in light of the medical community's new

understanding of chronic fatigue syndrome who

contradicted or in any way questioned the conclusions

of the Mayo Clinic and her treating physician.

Moreover, because chronic fatigue syndrome is

diagnosed partially through a process of elimination,

an extended medical history of "nothing-wrong"

diagnoses is not unusual for a patient who is

ultimately found to be suffering from the disease. The

Mayo Clinic and her treating physician considered

Plaintiff's entire medical history--including all the

failed attempts to diagnose--in making their

assessments. Finally, in a purely linguistic sense, an

early report that "I am unable to find the cause" does

not contradict a later report that "I have now found the

cause." The statements together demonstrate an

evolution rather than a contradiction.

10 F.3d 739, 745 (10th Cir. 1993).

Here, the doctors who examined Mitchell between 1988

and 1990 were apparently unfamiliar with CFS, see, e.g.,

Physician's Progress Notes of June 6, 1989, App. at 60

("[Mitchell] brought in some literature from CBC [sic; CDC

(Centers for Disease Control)?] on a chronic fatigue

syndrome. He may well have this, but I don't know how to

prove it."), and thus were unable to declare with confidence

that he was totally disabled by the disease. However, Dr.

Gantz's letters of September 1993 and August 1994 dispel

the confusion evidenced in the earlier medical records, and

make clear that Mitchell's CFS, though misunderstood,

clearly disabled him from all substantial gainful work as of

June 26, 1989.

3. The Administrator's Decision

According to the record before us, the Administrator

denied Mitchell's claim for LTD benefits because Mitchell

had failed to tender "objective medical evidence" that he

15

was unable to engage in any substantial gainful work as of

June 26, 1989.8 We hold that, in this context, it was

arbitrary and capricious for the Administrator to deny

Mitchell LTD benefits for this reason.

The Administrator's denial letters are terse, and we are

not altogether certain of their meaning. However, we find

the denial arbitrary and capricious under either of the

possible meanings we can divine. The Administrator may

have meant that Mitchell had tendered insufficient evidence

to persuade the Administrator that Mitchell experienced

chronic and unpredictable fatigue and loss of concentration

or that he experienced those symptoms to a sufficient

extent to foreclose his holding down paid employment. If

that was the Administrator's meaning, his denial of benefits

on that ground was arbitrary and capricious because the

undisputed facts of record are to the contrary. As we have

already described, the undisputed evidence from Mitchell's

physicians indicates that Mitchell has suffered severe CFS

symptoms that have precluded him from engaging in any

substantial gainful work since January 1989. Kodak has

identified no more "objective" evidence that Mitchell could

have submitted, in addition to his doctors' observations, to

support his claim that his fatigue and loss of concentration

were sufficiently severe to prevent him from engaging in

gainful work.

Because the Administrator cited a lack of "objective

medical evidence," as opposed to merely "objective

evidence," we think it more likely that the Administrator

meant that Mitchell had failed to submit clinical evidence

establishing the etiology of the chronic and unpredictable

fatigue and loss of concentration that disabled him from

_________________________________________________________________

8. See Letter of Jan. 17, 1992, App. at 24 ("The file indicates that you are

suffering from fatigue, but does not contain objective medical evidence

that your condition made you totally and continuously unable to engage

in any substantial gainful work for which you were qualified as of June

26, 1989.") (emphasis in original); Letter of Apr. 12, 1995, App. at 193

(informing Mitchell's attorney that denial of benefits was affirmed

because "you and your client have failed to provide any objective medical

evidence that his condition made him totally and continuously unable to

engage in any substantial gainful activity for which he was qualified as

of June 26, 1989.") (emphasis in original).

16

working. Although in some contexts it may not be arbitrary

and capricious to require clinical evidence of the etiology of

allegedly disabling symptoms in order to verify that there is

no malingering, we conclude that it was arbitrary and

capricious to require such evidence in the context of this

Plan and CFS.

The Plan requires that a claimant for LTD benefits "[m]eet

the definition of Disability," i.e. be "totally and continuously

unable to engage in any substantial Gainful Work for which

he is, or becomes, reasonably qualified" for at least 26

weeks. See Plan §§ 2.06, 4.01. Nowhere does the Plan state

that a claimant must provide clinical evidence of the

etiology of the "condition" that renders him disabled. Cf.

Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 520 (3d

Cir. 1997) (administrator's discretionary interpretation of

plan "may not controvert the plain language of the [plan]

document") (citing Gaines v. Amalgamated Ins. Fund, 753

F.2d 288, 289 (3d Cir. 1985)). All that the Plan required

was that Mitchell show that he was in fact "disabled" as of

June 26, 1989, and this he did. See supra Part II-B-2.

Moreover, it was impermissible for the Administrator to

imply an additional "clinical evidence of etiology"

requirement not specified in the Plan document in the

context of CFS. It is now widely-recognized in the medical

and legal communities that "there is no `dipstick' laboratory

test for chronic fatigue syndrome." Sisco v. United States

Dep't of Health & Human Services, 10 F.3d 739, 744 (10th

Cir. 1993). Because the disease, although universally-

recognized as a severe disability, has no known etiology,

see, e.g., Rose v. Shalala, 34 F.3d 13, 16-17 (1st Cir. 1994),

it would defeat the legitimate expectations of participants in

the Kodak Plan to require those with CFS to make a

showing of clinical evidence of such etiology as a condition

of eligibility for LTD benefits. Thus, it was arbitrary and

capricious for the Administrator to deny Mitchell benefits

because of a lack of such clinical evidence of the etiology of

his CFS.

III. Conclusion

In accordance with the foregoing, we hold that the Kodak

Plan Administrator's decision to deny Mitchell's claim for

17

LTD benefits was "arbitrary and capricious." We will affirm

the district court's grant of summary judgment for Mitchell.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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