# Petition for Writ of Certiorari — Glazer v. Reliance Standard Life Insurance Co (No. 08-501)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

Supreme Court, U8,

FILED
\S\ () | |
08-5 91 0CT 14 2008

AA ial 06 Tid CLERK

Wiliam K. Suter, Clerk

IN THE

Supreme Court of the United States

PRISCILLA GLAZER,
Petitioner,
v,

RELIANCE STANDARD LIFE
INSURANCE COMPANY,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE
UNITED States Court oF APPEALS
FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

—_———_ —~——_

ALICIA PAULINO-GRISHAM
_ Di Law Group
1111 Hypoluxo Road
Suite 110
Lantana, Florida 33462
(561) 202-9170

Attorneys for Petitioner

—— —a

COUNSEL PRESS
(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

Whether the Eleventh Circuit erred in holding, in
conflict with several Circvits and in apparent conflict
with the Department of Labor’s expressed position, that
an ERISA administrator is not required to provide a
participant with access to new evidence it develops after
a participant’s only administrative appeal has been
submitted in response to a denial of plan benefits, nor
the opportunity to review and respond to this new
evidence, prior to the closure of the administrative
record.

a hn i ee ide ee a lk ae Be ee,

il

TABLE OF CONTENTS

QUESTION PRESENTED ..................
TABLE OF CONTENTS .................4..
TABLE OF APPENDICES ..................
TABLE OF CITED AUTHORITIES .........
EE Gis Gewnbheeesstestecdceec
i cnbdeniead ens dneedbasne as
STATUTES AND REGULATIONS INVOLVED

STATEMENT OF THE CASE ...............
A. Fetial BOGKSTOURG. ......cccccccsccces
B. The District Court Proceeding .........

C. The Eleventh Circuit’s Decision ........

REASONS FOR GRANTING THE PETITION

I. This Petition Should Be Granted To
Resolve Squarely Conflicting Decisions
Between The Eighth, Tenth, And
Eleventh Circuits, To Prevent A
Worsening Divide Among The Circuits,
And To Resolve Confusion Among The
EG Gi Vdcetdcdecacanaes cee ns

Page

ie Se |

10

” ——

iii

Contents

A. There Is Square Conflict Among The

Eighth, Tenth, And Eleventh
Circuits, And Additional Conflicting
Decisions Among The Remaining
CES dC GR CEANH En Ei eee cheese

There Is Confusion Among The
IE I incase eneavewnsess

There is Additional Conflict Among
The Circuit And District Courts
Regarding The Intent of ERISA’s Full
and Fair Review Provisions And The
DOUs Accompanying Regulations.

II. This Honorable Court Should Grant This
Petition Because The Eleventh’s Circuit’s
Decision Contravenes The Purpose Of
The DOL Regulations And Frustrates the
ERISA Administrative Process Intended
By Congress And Fostered By The DOL
ie cide hes N ane eeeeesuneues

EE nina ¥onueGeecees shktaeeséuae4

Page

18

27

36

TABLE OF APPENDICES

Appendix A — Opinion Of The United States
Court Of Appeals For The Eleventh Circuit
RG EEE ccs Gdcbswnabsandceess la

Appendix B — Order Of The United States
District Court For The Southern District Of
Florida Dated And Filed September 25, 2006

Appendix C — Order Of The United States
Court Of Appeals Denying Petition For
Rehearing Filed June 13, 2008 ............. 30a

Appendix D — Regulation Involved .......... 32a

y

TABLE OF CITED AUTHORITIES
Page

CASES:

Abatie v. Alta Health & Life Ins. Co.,
458 F.3d 955 (9th Cir. 2006) ............... 15, 19

Abram v. Cargill, Inc.,
395 F.3d 882 (8th Cir. 2005) .............. passim

Balmert v. Reliance Standard Life Ins. Co.,
No. 2:07-95, 2008 WL 4404299
RB ee 19

Black v. Pitney Bowes Inc.,
No. 05-108, 2008 WL 3992306
CTPF CMI ccc vccccccccccccce 19

Boldt v. Dow Chemical Co. Voluntary
Group Acc. Ins. Plan,
No. 6:06-25, 2007 WL 2329873
CRE ED sccccccccccccceses 20

Crocco v. Xerox Corp.,
956 F. Supp. 129 (D. Conn. 1997),
aff'd in pertinent part
hype Ff) bo | 14

IMGregorio v. Hartford Comprehensive
Employee Benefit Serv. Co.,
423 FO 6G (iat Cir. BOGS) ... ccc cccccccecss 16

vi

Cited Authorities
Page
Ellis v. Metro. Life Ins. Co.,
126 F.3d 228 (4th Cir. 1997) .............0.- 15
Engelhoff v. Engelhoff,
I ]
Firestone Tire & Rubber Co. v. Bruch,
bis cb vedawececsscceces 34
Frederick v. Intel Corp.,
181 F.3d 1105 (9th Cir. 1999) ............... 15
Glazer v. Reliance Standard Ins. Co.,
524 F.3d 1241 (11th Cir. 2008),
rehearing denied, — F.3d —,
No. 06-15855-BB (11th Cir. June 13, 2008) ...
dice idbidwebde entereese cess 27, 29, 31
Glazer v. Reliance Standard Ins. Co.,
No. 06-60112, Slip. Op.
CRE IED ccc ccccccccccccees 13
Grossmuller v. Int’l Union, UAW,
715 F.2d 853 (8d Cir. 1983) ....... 11, 18, 14, 31, 32

Hamall-Desai v. Fortis Benefits Ins. Co.,
370 F. Supp. 2d 1283 (N.D. Ga. 2004), aff'd,
164 Fed. Appx. 963 (11th Cir. 2006),
rehearing denied, 179 Fed. Appx. 687
ee ee aos ecw cneeve 21

vii

Cited Authorities

Harris v. Aetna Life Ins. Co.,

379 F. Supp. 2d 1366 (N.D. Ga. 2005) ....

Hines v. Anchor Motor Freight, Inc.,

GG Ty TOO. oo ceive scccwcccccee.

Houston v. Unum Life Ins. Co. of Am.,

246 Fed. Appx. 293 (6th Cir. 2007) .......

Laub v. Aetna Life Ins. Co.,

549 F. Supp. 2d 571 (S.D. N.Y. 2008) .....

Lammers v. Am. Express Long Term
Disability Benefit Plan, No. 06-1099,
2007 WL 2247594 (D. Minn. Aug. 2, 2007)

Lunt v. Metro. Life Ins. Co.,
No. 2:05-784, 2007 WL 1964514

(D. Utah July 2, 2007) ..................

Mead v. ReliaStar Life Ins. Co.,
No. 2:05-332, 2008 WL 850678

Cis Wee OUR Sriccic cc sccccccccces

Metzger v. UNUM Life Ins. Co.,

476 F.3d 1161 (10th Cir. 2007) ...........

Miller v. United Welfare Fund,

72 F.3d 1066 (2d Cir. 1995) ..............

ks

vill

Cited Authorities

Morgan v. United States,

iia. sc ids secedesceses

Navarro v. Eaton Corp., No. 06-1190,

2007 WL 2011205 (D. Kan. July 9, 2007) ..

New York State Conference of Blue Cross

& Blue Shield Plans v. Travelers Ins. Co.,
Be AEE Sic ecdececceccececce

Robinson v. Aetna Life Ins. Co.,

443 F.3d 389 (5th Cir. 2006) .............

Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355 (2002) ........ ee eee eee eee

Russo v. Hartford Life & Acc. Co.,
No. 00-938, 2002 WL 32138296

(S.D. Cal. Feb. 5, 2002) ............ bade en

Schneider v. Sentry Group Long Term
Disability Plan,

422 F.3d 621 (7th Cir. 2005) ... .........

Silver v. Executive Car Leasing
Long-Term Disability Plan,

466 F.3d 727 (9th Cir. 2006) .............

Skipp v. Hartford Life Ins. Co.,
No. 06-2199, 2008 WL 346107

(D. Md. Feb. 6, 2008) ..............2----

ix

Cited Authorities
Page
Smith v. Continental Cas. Co.,

No. 1:06-1441, 2007 WL 2071538
(N.D. Ga. July 16,2007) ................... 22

Vaca v. Sipes,
EE ne in iaccndeievccevseee 32

Vega v. National Life Ins. Servs.,
188 F.3d 287 (5th Cir. 1999) ................ 17

Walters v. Prudential Ins. Co. of Am.,

No. 06-20, 2007 WL 4531311

Ce MI UD occ cece ccccccsccs 21
White v. Reliance Standard Life Ins. Co.,

No. 1:05-2149, 2007 WL 187939

a 21
Winz-Byone v. Metro. Life Ins. Co.,

No. 07-238, 2008 WL 962867

ek ES Ee 20
STATUTES:
diy d Cedesw kien seeennate passim

GE ae ac accadescnectonetincnwt 32

x

Cited Authorities
Page

REGULATIONS:
ERISA Claims Procedure,

29 C.F-R. § 2560.503-1 (2000) ............. passim
ERISA Claims Procedure,

65 Fed. Reg. 70,252 (Nov. 21, 2000) ........ 24, 28
Claims Procedure for Employee Benefit Plans,

42 Fed. Reg. 27,426 (May 27, 1977) ......... 28
MISCELLANEOUS:
Brief for Plaintiff as Amici Curiae, Russo v.

Hartford Life & Acc. Co., No. Civ. 00-938, 2002

WL 32138296 (S.D. Cal. Feb. 5, 2002) ...... 26, 28
H.R. Rep. No. 93-807, 93d (1973), reprinted in

STO We MID vi Sis ose cceccccecess 32
U.S. Dept. of Comm., Bureau of the Census,

Current Population Survey (March 2007) ... 9

U.S. Dept. of Labor, Employee Benefits Security
Admin.: Filing a Claim for Your Health and
Disability Benefits, 1 (Sept. 2006) .......... 9

1

Petitioner-Plaintiff, Priscilla Glazer, respectfully
submits that a writ of certiorari should issue to review
the April 21, 2008 decision of the United States Court
of Appeals for the Eleventh Circuit entered in this case.

OPINION BELOW

The opinion of the United States Court of Appeals
for the Eleventh Circuit affirming the decision of the
United States District Court for the Southern District
of Florida is reported at 524 F:3d 1241, and is reproduced
in the Petitioner’s Appendix. Pet. App. A. The opinion
of the District Court is not reported and is reproduced
in the Appendix. Pet. App. B.

JURISDICTION

The judgment of the Court of Appeals was entered
on April 21, 2008, and the Eleventh Circuit denied
Petitioner’s request for a rehearing in an order filed on
June 13, 2008, which is reproduced in the Appendix.
Pet. App. C. The time for filing this petition was
extended by Justice Thomas to October 11, 2008. This
Court has jurisdiction under 28 U.S.C. § 1254(1).

~* ‘
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a“

2
STATUTES AND REGULATIONS INVOLVED

The section of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), involved
provides in pertinent part:

In accordance with regulations of the
Secretary, every employee benefit plan shall—

(1) provide adequate notice in writing to
any participant or beneficiary whose claim
for benefits under the plan has been
denied, setting forth the specific reasons
for such denial, written in a manner
calculated to be understood by the
participant, and

(2) afford a reasonable opportunity to any
participant whose claim for benefits has
been denied for a full and fair review by
the appropriate named fiduciary of the
decision denying the claim.

29 U.S.C. § 1138.

The pertinent Department of Labor (“DOL’)
Regulation involved, ERISA Claims Procedure,
29 C.E-R. § 2560.503-1 (2000), is reproduced in pertinent
part in the Appendix. Pet. App. D.

3
STATEMENT OF THE CASE

A. Factual Background

Priscilla Glazer worked for several years as a senior
technical writer for The Ultimate Software Group
(“Ultimate”). As a benefit of her employment, Glazer
chose to participate in the Ultimate Long-Term
Disability Plan (“the Plan”) insured and administered
by Reliance Standard Life Insurance Company
(“Reliance Standard”). The Plan is governed by ERISA.

At the advice of her treating Orthopedist, Glazer
ceased working on June 13, 2003, and subsequently filed
a claim for disability benefits with Reliance Standard
under the Plan. On January 13, 2004, Reliance Standard
found that Glazer became disabled under the terms of
the Plan as of June 13, 2003 and approved benefits.
Glazer continued to present information from her
treating doctors, including her Orthopedist, Physiatrist,
Rheumatologist, and Internist, which included
documentation of her chronic and severe medical
condition and limitations, opinions that Glazer was
disabled from working, and advisements that she had
reached maximum medical improvement. In May 2004,
Glazer’s treating Physiatrist completed a Physical
Capacities Questionnaire form (“PCQ”) at Reliance
Standard’s request. While Glazer’s Physiatrist indicated
on the PCQ that Glazer was capable of performing some
basic sedentary level activities, he did not state that
Glazer’s condition had improved, and did not opine she
was able to perform the substantial and material duties
of her regular occupation on a full or part-time basis.

4

On July 11, 2004, without consulting a medical
professional regarding the Physiatrist’s PCQ and
Glazer’s medical file, Reliance Standard terminated
Glazer’s disability claim. Reliance Standard asserted
that based upon the Physiatrist’s PCQ and a previous
interview with Giazer, she was capable of performing
“sedentary duty classification” on a full-time basis. In
response, Glazer submitted her only administrative
appeal allowed under the Plan, providing evidence to
refute Reliance Standard’s stated rationale for
termination of her disability income benefits.

In a May 12, 2005 letter, Reliance Standard upheld
its denial based upon the following expert reports
generated by it without Glazer’s knowledge following
the submission of her appeal: three (3) medical reviews
and reports totaling fifteen (15) pages by a
Gastroenterologist, Dr. Hauptman, hired by Reliance
Standard (“the Hauptman Reports”), and a vocational
assessment and report created by Reliance Standard’s
paid in-house vocational staff (“the Vocational Report”).
Prior to issuing this final denial of plan benefits,
Reliance Standard did not inform Glazer, nor her
treating doctors, of this new evidence that was
generated during the time period of January 2005
through May 2005. In the same correspondence where
Glazer was informed for the first time of this new
evidence and the revised rationale alleged to deny her
benefits, Reliance Standard also informed Glazer that
its “claim decision [was] now final; as you have exhausted
any administrative remedies available to you” and that
she had “the right to bring a civil action under [ERISA].”
Glazer was never afforded an opportunity to review and
respond to the Hauptman Reports nor the Vocational

5

Report prior to Reliance Standard closing the
administrative record. Accordingly, Glazer’s only
recourse was to file this lawsuit in federal court.

B. The District Court Proceeding

On January 23, 2006, Glazer filed a civil action
pursuant to ERISA against Reliance Standard in the
United States District Court for the Southern District
of Florida. On September 25, 2006, the District Court
entered a summary judgment in favor of Reliance
Standard. In so doing, the Court: (1) limited its review
to the administrative record that was before Reliance
Standard at the time of its final denial; (2) did not address
Glazer’s request for a remand to Reliance Standard for
a reopening of the administrative record to allow her to
respond to the new evidence and rationale asserted by
Reliance Standard in its final denial; and (8) did not
address Glazer’s argument that she had been deprived
of the “full and fair review” guaranteed her under
ERISA.

C. The Eleventh Circuit’s Decision

On appeal of the summary judgment, the Eleventh
Circuit affirmed the District Court’s holding that
Reliance Standard’s termination of Glazer’s benefits was
“not wrong.” In so holding, the Court expressly ruled
that a court’s review of an ERISA benefits denial case
is limited to the administrative record before an
administrator at the time of its final denial, and that it
is the rlan participant’s burden to prove: that she is
disabled under the Plan and that the administrator’s
denial decision was “wrong.”

6

Subject of this Petition is the Eleventh Circuit’s
holding that a plan administrator is not required to
produce appeal-level evidence, which it has generated
and considered in upholding a denial of a participant’s
plan benefits, prior to issuing its final denial to allow
the participant the opportunity to review and respond
to the new evidence. Specifically, the Eleventh Circuit
held that Reliance Standard was only required to
provide Glazer with the Hauptman Reports after
Reliance Standard had issued its final denial, and thus
after the administrative record had closed. The
Eleventh Circuit found that to hold otherwise would be
contrary to the plain text of the DOL Regulations,
because the DOL Regulations only require an
administrator to produce all “relevant” documents to a
plan participant. The Court held that according to the
DOL Regulations, a document is “relevant” only if it
“(w]as relied upon” or “[w]as submitted, considered, or
generated in the course of making the benefit
determination.” The Eleventh Circuit held that Reliance
Standard had not “relied upon” the Hauptman Reports
or “used the report ‘in the course of making the benefit
determination” until after its final denial letter had
been issued. The Court held that only after Reliance
Standard had issued its final denial letter was it required
to produce any new evidence it generated or relied upon
in rendering a final denial. The Eleventh Circuit relied
heavily upon the Tenth Circuit’s decision issued in
Metzger v. UNUM Life Insurance Company, for the
proposition that subsection (h)(2)(iii) of the DOL
regulations “does not require a plan administrator to
provide a claimant with access to the medical opinion
reports of appeal-level reviewers prior to a final decision
on appeal,” and that “requiring these documents to be

7

produced earlier would create ‘an unnecessary cycle of
submission, review, re-submission, and re-review.”” The
Eleventh Circuit also asserted that according to the
DOL, the sole purpose for the “production of these
[relevant] documents is to enable a claimant to evaluate
whether to appeal an adverse determination,” and
reasoned that “[djocuments produced before a decision
is made would not assist a claimant in deciding whether
to pursue an appeal because the claimant would not yet
know if there had been an adverse determination.”

REASONS FOR GRANTING THE PETITION

This Petition should be granted because there are
squarely conflicting decisions between the Eighth,
Tenth, and Eleventh Circuit Courts of Appeal, which
has caused vast confusion to occur within the district
courts regarding the issue presented in this case. In
significant part, this confusion involves the intent of the
DOL in promulgating 29 C.F.R. § 2560.503-1, which was
enacted pursuant to 29 U.S.C. § 1133. As the DOL is
the entity entrusted with creating regulations to
promote Congress’ goals in enacting ERISA, confusion
among the courts as to the intent behind the DOL
regulations and § 1133 of ERISA is especially
problematic and can only breed additional conflict within
the courts deciding future ERISA benefit denial cases.
Furthermore, and similar to many ERISA-governed
group disability plans, the Plan at issue in Glazer is
national in scope! and at least two circuit courts have
delivered conflicting decisions on this issue directly
related to claims administration. Accordingly,

1. See https://www.ultirecruit.com/USG1006/JobBoard/
listjobs.aspz.

8

participants that are covered under the same Plan in
the Eighth Circuit are afforded more procedural
protections than participants in the Tenth and Eleventh
Circuits. In the Eighth Circuit, plan participants are
provided with the opportunity to review and respond
to all evidence utilized against them prior to the
closure of the administrative record. Conversely, plan
participants under the same Plan are barred from
submitting rebuttal evidence to respond to evidence
gathered by the plan administrator during the appeals
process in the Tenth and Eleventh Circuits. Moreover,
administrators that provide ERISA plans in the Eighth
Circuit and also in the Tenth or Lieventh Circuits, like
Reliance Standard, are forced to modify their claims
procedures according to which circuit court has
jurisdiction, despite the same federal statute and
regulations governing all ERISA benefit claims. This is
especially problematic given the conflict among the
district courts on this issue. Not only must nationwide
plan administrators utilize conflicting standards of plan
administration according to which circuit court has
jurisdiction over a claim, but because many circuits
currently have not directly addressed this precise issue,
plan administrators must attempt to modify their claims
procedures according to which district within the silent
circuits that the claim arises in. This directly conflicts
with ERISA’s mandate for uniformity in plan
administration. See Rush Prudential HMO, Inc. v.
Moran, 536 U.S. 355, 384-385 (2002). In enacting ERISA,
Congress intended:

[TJo ensure that plans and plan sponsors would
be subject to a uniform body of benefits law; the
goal was to minimize the administrative and

9

financial burden of complying with conflict
directives . . . requiring the tailoring of plans
and employer conduct to the peculiarities of the
law of each jurisdiction.

New York State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 656-657 (1995)
(citations omitted). Uniformity cannot be accomplished
if plan administrators are subject to different legal
obligations and plan participants are subjected to
conflicting plan administration standards in different
jurisdictions. See Engelhoff v. Engelhoff, 532 U.S. 141,
148 (2001).

Moreover, the issue before this Honorable Court
extends far beyond the deprivation of one plan
participant’s right to procedural due process in ERISA
cases. According to the March 2007 Current Population
Series, 137.1 million people were covered by private-
sector employer-sponsored health insurance plans in
2006.* Millions of participants and beneficiaries in the
United States rely upon their employee benefits for
insurance coverage that they wish they never had to
use.® As such, whether plan participants are afforded
an opportunity to review and respond to evidence used
against them by plan administrators, has far reaching

2. See U.S. Dept. of Comm., Bureau of the Census, Current
Population Survey (March 2007). The Employee Benefits
Security Administration does not generate estimates of
disability insurance plans separately.

3. U.S. Dept. of Labor, Employee Benefits Security Admin.:
Filing a Claim for Your Health and Disability Benefits, 1 (Sept.
2006).

10

implications affecting a significant section of the
population. Given the considerable number of plan
participants and potential ERISA benefit claims,
preserving Congress’ goal of uniform claims handling
practices is imperative. Not only is this goal of ERISA
frustrated when the circuit courts are in conflict about
an administrator’s obligation to disclose documentation
at the administrative level, but so is another chief goal
of ERISA - the promotion of administrative resolution
of claims. This matter is of great public importance,
warranting this Honorable Court’s review, and this case
provides an ideal vehicle for resolution.

I. This Petition Should Be Granted To Resolve
Squarely Conflicting Decisions Between The
Eighth, Tenth, And Eleventh Circuits, To Prevent
A Worsening Divide Among The Circuits, And To
Resolve Confusion Among The District Courts.

A. There Is Square Conflict Among The Eighth,
Tenth, And Eleventh Circuits, And Additional
Conflicting Decisions Among The Remaining
Circuits.

There is a clear split among the Eighth, Tenth, and
Eleventh Circuits on the precise factual and legal issue
presented in this case, which only this Court can resolve.
The Eighth Circuit holds that for an ERISA plan
administrator to provide a participant with a full and
fair review guaranteed her under 29 U.S.C. § 1133 and
29 C.F.R. § 2560.503-1 (2000), it must permit a
participant to review and respond to evidence developed
by the administrator during the appeals process, prior
to the final benefit decision being issued. Abram v.

11

Cargill, Inc., 395 F.3d 882 (8th Cir. 2005). The Abram
Court held:

The process used by the Plan was not consistent
with a full and fair review. Abram was not
provided access to the second report by Dr.
Gedan that served as the basis for the Plan’s
denial of benefits until after the Plan’s decision.
Without knowing what “inconsistencies” the
Plan was attempting to resolve or having access
to the report the Plan relied on, Abram could
not meaningfully participate in the appeals
process .... This type of “gamesmanship” is
inconsistent with full and fair review. There can
hardly be a meaningful dialogue between the
claimant and the Plan administrators if evidence
is revealed only after a final decision. A claimant
is caught off guard when new information used
by the appeals committee emerges only with the
final denial. Abram should have been permitted
to review and respond to the report by Dr.
Gedan.

Id. at 886 (citations omitted). Relying upon the Third
Circuit’s seminal opinion in Grossmuller, the Abram
Court explained: “[T]he persistent core requirements’
of full and fair review include ‘knowing what evidence
the decision-maker relied upon, having an opportunity
to address the accuracy and reliability of that evidence,
and having the decision-maker consider the evidence
presented by both parties prior to reaching and
rendering his decision.” Jd. (quoting Grossmuller v. Intl
Union, UAW, 715 F.2d 853, 858 n.5 (3d Cir.1983)).

>

12

The Tenth Circuit’s position on this issue, however,
is entirely contrary to that of the Eighth Circuit. In
Metzger v. Unum Life Insurance Company of America,
the Tenth Circuit held:

In light of the sum of procedural requirements
of 29 C.E-R. § 2560.503-1 and the Department’s
explanation of those regulations, we hold that
subsection (h)(2)(iii) does not require a plan
administrator to provide a claimant with access
to the medical opinion reports of appeal-level
reviewers prior to a final decision on appeal.
Instead, the regulations mandate provision of
relevant documents, including medical opinion
reports, at two discrete stages of the
administrative process. 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. 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 initial determination — must be
disclosed after a final decision on appeal.
29 C.E-R. § 2560.503-1(i)(5).

476 F.3d 1161, 1167 (10th Cir. 2007). The Tenth Circuit
reasoned that allowing ERISA participants to review
and respond to evidence gathered by the administrator
during the appeal review stage would prolong the
appeals process by creating an “unnecessary cycle of
submission, review, re-submission, and re-review.”
See id. at 1166-67. The Tenth Circuit’s holding in
Metzger has engendered the Eleventh Circuit’s decision

13

in Glazer, which now both stand in direct conflict with
the Eighth Circuit’s holding in Abram. This Court
should grant this Petition to resolve this square conflict
among the Eighth, Tenth, and Eleventh Circuits.

Furthermore, while the remaining Circuits have not
expressly addressed Abram and Metzger, they have
ruled in cases where the critical issue in the case at bar
— whether a participant is deprived of a meaningful
review of her ERISA claim when the administrator does
not provide her the opportunity to review and respond
to certain evidence — was implicated. Since 1983, the
Third Circuit has relied upon its seminal opinion in
Grossmuller, for guidance. 715 F.2d 853. In Grossmuller,
the Third Circuit held that the ERISA plan
administrator failed to previde Grossmuller with a
“full and fair” review when it did not allow him the
opportunity to examine or address the evidence used
against him to terminate his disability benefits. The
Court reasoned that a review of “the administrative law
context” reveals that: “the persistent core requirements
of review intended to be full and fair include knowing
what evidence the decision-maker relied upon, having
an opportunity to address the accuracy and reliability
of that evidence, and having the decision-maker
consider the evidence presented by both parties prior
to reaching and rendering his decision.” /d. at 858, n.5
(citing Morgan v. United States, 304 U.S. 1, 18-19,
(1938)). The Third Circuit’s reasoning and position in
Grossmuller sharply contrasts with the reasoning found
in Metzger and Glazer.

14

While Grossmuller is oft referred to by the other
Circuits as setting forth the “most widely accepted
criteria for determining what constitutes a full and fair
review” under ERISA,‘ and while the Circuits have
expressed approval of the Grossmuller test, there is a
clear variation amongst the Circuits in determining the
circumstances under which a participant must be
provided with an ability to review and respond to
evidence gathered by an administrator which is
ultimately used to support a denial of an ERISA benefits
claim. Compare, e.g., Houston v. Unum Life Ins. Co. of
Am., 246 Fed. Appx. 293 (6th Cir. 2007) (unpublished)
(emphasis in original) (holding that where the
administrator failed to provide its participant the
opportunity to review and respond to its “revised
rationale for terminating her benefits, including [the
non-treating, non-examining appeal-level physician’s
report],” the participant was denied a full and fair review
because a “[fJull and fair review does not mean that an
insurance company can simply mouth the same reason
[for denial, but instead includes]: knowing what evidence
the decision-maker relied upon [and] having an
opportunity to address the accuracy and reliability of
that evidence”), and Schneider v. Sentry Group Long
Term Disability Plan, 422 F.3d 621, 625-26 (7th Cir. 2005)
(finding that the ERISA participant was denied a
“meaningful review” of the administrator’s denial and
explaining:

Ms. Schneider was not provided with the nine
and one-half page report which Dr. Spierer

4. See e.g., Crocco v. Xerox Corp., 956 F. Supp. 129, 139
(D. Conn. 1997), aff’d in pertinent part 137 F.3d 105, 108, 109
(2d Cir. 1998).

15

prepared and on which Sentry insists it based
its dec’sion to terminate benefits. . . . [and]
[bjecause Ms. Schneider did not know what
reasons motivated Dr. Spierer’s conclusion
that she was no longer disabled, she could
hardly seek review of that conclusion

with Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 237 (4th
Cir. 1997) (holding that the initial medical review report
used by MetLife to deny Ellis’s claim was “the most
critical document” for Ellis to be allowed access, but
conversely finding that MetLife was not required to
provide Ellis with the two subsequent appeal-level
medical review reports “as a part of the review
procedures” explaining that “the initial decisional
process and the subsequent review procedures are
distinct,” but complicating its holding by finding MetLife
neutralized any harm of failing to provide the first
medical review report by providing the second medical
report to Ellis’s health care providers for “critique” and
“permitting Ellis and her health care providers to
submit additional data in response” prior to MetLife
issuing its final denial of the claim). Also Compare, e.g.,
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974
(2006) (holding that when “an administrator . . . adds, in
its final decision, a new reason for denial, a maneuver
that has the effect of insulating the rationale from
review” it violates both 29 U.S.C. §§ 1133(1) and (2),
and the appropriate remedy in this situation is that a
participant be entitled to submit evidence at bench trial
in the district court to rebut the administrator’s new
rationale for its final denial), and Fredrick v.
Intel Corp., 181 F.3d 1105, 1111 (9th Cir: 1999)
(holding the plan participant was entitled to admit

16

evidence in court but the administrator was not,
explaining the claim procedures applied by the
administrator prevented the participant from
submitting the evidence necessary to support his claim
for benefits), and Miller v. United Welfare Fund, 72
F.3d 1066, 1074 (2d Cir. 1995) (remanding to the
administrator where it failed to provide a full and fair
review, where the administrator was to: first, address
the evidence presented at the impermissible trial that
occurred, and then allow the participant “to produce any
additional evidence to rebut any evidence on which the
[administrator] could rely to deny benefits” prior to the
closure of the administrative record), with Silver v.
Executive Car Leasing Long-Term Disability Plan, 466
F.3d 727, 732, n.2 (9th Cir.2006) (commenting in a
footnote, in holding that a participant was not deprived
of a full and fair review when he was not allowed to
respond to appeal-level evidence generated by the
administrator prior to the final benefit determination,
that “in order for [an administrator] to evaluate [a
participant’s] appeal fairly, it ha/s] to wait until [the
participant] has submitted all of his materials; for [an
administrator] to do otherwise would either undermine
[a participant’s] ability to present all of his supporting
information or lead to an interminable back-and-forth
between the plan administrator and the claimant”), and
DiGregorio v. Hartford Comprehensive Employee
Benefit Serv. Co., 423 F.3d 6 (1st Cir. 2005) (holding that
although the administrator failed to provide the claimant
with a full claim file and technically failed to comply with
the DOL regulations, it still provided her with the
primary pieces of evidence relied upon to deny the claim
which still allowed the participant to “prepare an
informed response to [Hartford’s] decision”).

17

However, the Fifth Circuit has taken an approach
that is unique to its sister circuits. The Fifth Circuit
holds that “the administrative record consists of
relevant information made available to the administrator
prior to the complainant’s filing of a lawsuit [as long as]
the administrator [is given] a fair opportunity to
consider it,” which allows the plan participant (at her
option) to respond to evidence used by the administrator
to deny her claim, even after a final denial decision has
been issued. Vega v. National Life Ins. Servs., 188 F.3d
287, 300 (5th Cir. 1999) (en banc). In its en banc opinion,
the Fifth Circuit acknowledged that in denying a plan
participant the ability to supplement the administrative
record at trial, “there is a concern that a self-interested
administrator can manipulate this process unfairly
(e.g., by permitting the administrator to exclude from
the record information that would weigh in favor of
granting the claim)... .” Jd. The Court explained that
its motivating concern was to resolve claims at the
administrative level. See id. While the Fifth Circuit has
developed this safeguard designed to prevent the unfair
manipulation of process by the administrator, the Court
has still been forced to decide issues regarding an
administrator’s failure to disclose certain information
that forecloses a participant’s ability to adequately
participate in a meaningful admiristrative review of
her claim. See, e.g., Robinson v. Aetna Life Ins. Co.,
443 F.3d 389, 394 (5th Cir. 2006) (holding a plan
administrator’s failure to identify vocational experts
consulted in connection with a claim denial deprives a
participant of a full and fair review because “the two
subsections of section 1133 [are meant to] complement{]
each other” and “the requirement that the
administrator disclose the basis for its decision is

18

necessary so that beneficiaries can adequately prepare
for any further administrative review . . . [and to] help
ensure the ‘meaningful review’ contemplated by
subsection (2)”).

These additional conflicting decisions of the
remaining circuits, combined with the published
decisions of Abram and Metzger, have caused confusion
among the district courts. The split and lack of
uniformity among the Circuits on the issue presented
in this case is in imminent danger of expanding, and this
Honorable Court should grant this Petition to prevent
a worsening divide among che Circuits.

B. There Is Confusion Among The District Courts.

Given the split and lack of uniformity among the
Circuits, the district courts have been grappling to
determine which side of the divide their Circuit will
eventually land on. This has created vastly different
results on the very same issue within the district courts
and even between district courts within the same federal
circuit. Such an example exists within the Second Circuit.
In Mead v. ReliaStar Life Insurance Company, the
District Court of Vermont held that that the
administrator denied the participant a full and fair
review when it failed to provide the participant with an
opportunity to review and respond to an appeal-level
medical report used against the participant in the final
denial. No. 2:05-332, 2008 WL 850678, at *9 (D. Vt. Jan.
29, 2008). The court reasoned that the participant was
not able to challenge the credibility of the new medical
opinion, despite the rationale in the initial denial and
final denial remaining the same. See id. The district

19

court acknowledged the conflict among the Eighth and
Tenth Circuits, but adopted the reasoning of Abram.
See id. at *8-9. Also decided in 2008, are two decisions
by the Southern District of New York Court which are
directly contrary to the decision in Mead. In Laub v.
Aetna Life Insurance Company, the court held that the
administrator was not required to provide the
participant with appeal-level evidence it gathered prior
to rendering its final benefit determination. 549 F. Supp.
2d 571, 576 (S.D. N.Y. 2008). The Laub Court noted
the reasoning of Metzger to hold that requiring
administrators to provide participants with evidence it
gathers and ultimately utilizes during the appeals
process would result in an endless cycle of submission
and review. See id. at 576, n.3. Then, in Black v. Pitney
Bowes Inc., in addressing the participant’s argument
that he was denied a full and fair review in accordance
with the reasoning of Abram, the court noted that Tenth
Circuit has questioned and rejected the Eighth Circuit’s
reasoning. No. 05-108, 2008 WL 3992306, at *11 n.7(S.D.
N.Y Aug. 26, 2008). However, the Black Court found
that “even if Dr. Broder’s report was disregarded,” the
administrator’s decision to deny the claim was not
arbitrary and capricious. See id.

However, the confusion among the district courts
extends far beyond just the Second Circuit. See, e.g.,
Balmert v. Reliance Standard Life Ins. Co., No. 2:07-
95, 2008 WL 4404299, at *9, n.2 (S.D. Ohio Sept. 23, 2008)
(adopting the reasoning in Metzger to hold that the
participant was not denied a full and fair review when
she was not permitted to review and respond to an
independent medical examination report solicited by the
administrator during the appeals process, and also

20

rejecting Abram for the same reasons as Metzger);
Winz-Byone v. Metropolitan Life Ins. Co., No. 07-238,
2008 WL 962867 (C.D. Cal. Mar. 26, 2008) (adopting the
reasoning in Metzger, after acknowledging the conflict
among the Eighth and Tenth Circuits on the issue
in the case at bar); Skipp v. Hartford Life Ins. Co.,
No. 06-2199, 2008 WL 346107 (D. Md. Feb. 6, 2008)
(acknowledging the conflict between the Eighth and
Tenth Circuits but adopting the reasoning in Metzger
to hold that under the DOL regulations as administrator
is not required to produce a medical records review it
solicited during the appeals process until after the final
benefit determination); Boldt v. Dow Chemical Co.
Voluntary Group Acc. Ins. Plan, No. 6:06-25, 2007 WL
2329873 (S.D. Tex. Aug. 15, 2007) (recognizing the split
among the Eighth and Tenth Circuits, and agreeing with
the Abram Court’s determination that a full and fair
review “entitled [a participant] to know what evidence
was relied upon by the administrator ‘and respond to
that evidence,” but declining to adopt the “hard and
fast” rule set forth in either Abram or Metzger without
further guidance from the Fifth Circuit).

The district courts within the Eighth Circuit have
found the Tenth Circuit’s assertion that the Abram
decision was founded on the pre-2000 amendment
regulations invalid. In Lammers v. American Express
Long Term Disability Benefit Plan, the court was not
persuaded by the Tenth Circuit’s reasoning in Metzger,
because the Abram decision “was rooted in ERISA’s
fundamental ‘full and fair review’ requirement,
29 U.S.C. § 1133(2).” No. 06-1099, 2007 WL 2247594, at
*5-6 (D. Minn. Aug. 2, 2007). The Lammers Court
applied its circuit’s precedent in Abram to find that the

21

participant was denied a full and fair review when the
administrator failed to allow the participant to review
and respond to the two appeal-level medical reports.
See id. at 6; see also, Walters v. Prudential Ins. Co. of
America, No. 06-20, 2007 WL 4531311, *18 (N.D. Iowa
Dec. 18, 2007). Similarly, the district courts within the
Tenth Circuit have followed the holding in Metzger when
presented with this issue. See, e.g., Navarro v. Eaton
Corp., No. 06-1190, 2007 WL 2011205, at *4 (D. Kan.
July 9, 2007); Lunt v. Metropolitan Life ins. Co., No.
2:05-784, 2007 WL 1964514, at *9 (D. Utah July 2, 2007).

However, there is no stronger illustration of the
danger for increasing conflict among the circuits on this
issue than what occurred in the Eleventh Circuit. Prior
to Metzger, when faced with the issue presented in the
case at bar, several district courts within the Eleventh
Circuit expressed approval for the reasoning in Abram.
See, e.g., White v. Reliance Standard Life Ins. Co., No.
1:05-2149, 2007 WL 187939 (N.D. Ga. Jan. 22, 2007)
(adopting the reasoning in Abram); Harris v. Aetna Life
Ins. Co., 379 F. Supp. 2d 1366 (N.D. Ga. 2005) (adopting
the reasoning in Abram); Hamall-Desai v. Fortis
Benefits Ins. Co., 370 F. Supp. 2d 1283, 1313-15 (N.D.
Ga. 2004), aff’d, 164 Fed. Appx. 963 (11th Cir. 2006),
rehearing denied, 179 Fed. Appx. 687 (11th Cir. 2006)
(holding that “Fortis’ refusal to provide the [appeal-level]
reports ... denied Desai access to information relevant
to her claim after the initial denial, ‘thus denying [her]
the opportunity to respond to this evidence before the
decision on review was reached” and citing Russo v.
Hartford Life & Acc. Co., No. Civ. 00-938, 2002 WL
32138296 (S.D. Cal. Feb. 5, 2002) (holding, after the
benefit of the Secretary of Labor’s briefing, that

22

“(djenying a claimant access to information that is
generated after an initial denial, but is subsequently
relied upon by the administrator in reviewing the claim
on appeal, effectively denies the claimant with a full and
fair review,” and that “[b]y requiring . . . administrators
to maintain ... procedures that allow claimants access

to... documents ... is consistent with both plain
language of the regulation, as well as the spirit and
intent of ERISA .... regardless of whether it was

generated prior to or after an initial benefit denial”)).
Following Metzger, this did not change. See, e.g., Smith
v. Continental Cas. Co., No. 1:06-1441, 2007 WL 2071538
(N.D. Ga. July 16, 2007) (adopting the Eighth Circuit’s
reasoning in Abram in holding that the claimant was
denied a full and fair review by the administrator when
denied the opportunity to review and respond to an
appeal-level medical summary which was utilized to
support the final benefit denial). Eventually, the matter
reached the Eleventh Circuit in Glazer and the Circuit
Court was forced to make a decision between the
contrasting decisions, increasing the already existing
conflict within the circuit courts.

Given the clear split among the Eighth, Tenth, and
Eleventh Circuits and the confusion among the district
courts on this issue, without resolution from this
Honorable Court the conflict within the Circuit Courts
will almost certainly increase. Conflict within the circuits
on this issue frustrates ERISA’s chief goal of uniformity
in claims administration. The Eleventh Circuit’s
reasoning is clear, the relevant facts are well-developed
and the issues clearly defined. Accordingly, this case
provides an ideal vehicle by which the Court can resolve
the circuit conflict.

23

C. There Is Additional Conflict Among The Circuit
And District Courts Regarding The Intent Of
ERISA’s Full And Fair Review Provisions And
The DOUs Accompanying Regulations.

In large part, the conflict among the circuit courts
and the confusion among the district courts is due to
disagreement about the intent of the DOL in
promulgating 29 C.F.R. § 2560.503-1 (2000). Such
confusion within the courts is especially problematic in
ERISA benefit cases because the DOL is entrusted with
creating and enforcing regulations to carry out the
purposes of Congress in enacting ERISA.° Confusion
within the circuits about the requirements under the
DOL regulations can only lead to confusion among
participants and administrators about the true
requirements in the administrative claims process.
Resolution of this issue is essential to ensure that the
courts properly and consistently interpret the DOL
regulations and this case presents an ideal vehicle to
resolve the conflict regarding the requirements of
29 C.F-R. § 2560.503-1(2000).

At the core of the Metzger Court’s criticism of the
Eighth Circuit’s holding in Abram, is its assertion
that the Eighth Circuit was applying the pre-2000
amendment regulations, despite the fact that the Abram
Court specifically cited to 29 C.F.R. § 2560.503-1(h)
(2000). Metzger, 476 F.3d at 1168, n.3. The Tenth Circuit
suggests that the Eighth Circuit therefore did not
consider the 2000 regulation’s requirement that a
healthcare professional review medical evidence, which

5. See 29 U.S.C. § 1133.

+
4
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"
:

‘ay

ee ee er ee ee ae ae ae

24

the Metzger Court asserted would create an endless .
cycle of review and re-review.® See id. at 1165, 1168, n.3.
The Tenth Circuit further concluded that the DOUs
intent in requiring disclosure of documents under its
regulations was to provide claimants with the ability to
determine whether to seek further appeal, and that
disclosure of appeal-level evidence pricr to a final denial
would not further this purpose. See id. at 1166-67 (citing
ERISA Claims Procedure, 65 Fed. Reg. 70,252 (Nov. 21,
2000)’). The Tenth Circuit’s reasoning engendered
support by the Eleventh Circuit in Glazer and the
district courts that have specifically sided with the
Metzger decision and rejected the reasoning of Abram.
However, the Abram decision, which was decided two
years after the 2000 amendments to the regulations were
enacted, focused on the core requirements of a “full and
fair review” under 29 U.S.C. § 1132(2). Abram, 395 F.3d
at 886. Furthermore, the district courts that have
adopted Abram and specifically rejected Metzger, find

6. The claim in Abram arose in 2000, the year that the -
amended regulations were enacted. However, the Eighth Circuit
decided the claim in 2002, two years after the regulations had
been enacted. Accordingly, the Tenth Circuit’s assertion that
the Eighth Circuit likely did not consider that the new
regulations required administrators to seek the advice of
healthcare professionals, and thus that it did not contemplate
its concern over a prolonged review process, is unlikely.

7. In the section cited to by the Tenth Circuit, the DOL
explained that its purpose in promulgating the amendments
was to “clarify” the type of documents it intended to be disclosed
under the 1977 regulations and earlier in the document
provided that the intent was to provide plan participants with
“fuller and fairer” claims and appeal procedures. See ERISA
Claim Procedure, 65 Fed. Reg. at 70,252 (emphasis supplied).

25

the Tenth Circuit’s assertions regarding the DOLs
intent unpersuasive. This confusion is further fueled by
the Secretary of Labor’s statements regarding its intent
(as it relates to this exact issue), in its Amicus Curiae
brief filed in 2002 in the Southern District of California
District Court. See Brief for Plaintiff as Amici Curiae,
Russo v. Hartford Life & Acc. Co., No. Civ. 00-938, 2002
WL 32138296 (S.D. Cal. Feb. 5, 2002). The Secretary
explained that the regulation does not limit a
participant’s right to review and respond to evidence
gathered by an administrator prior to the initial denial
of benefits, but rather includes all documents that a plan
administrator relied on in rendering its final benefit
determination. See id. at 9 (emphasis supplied). The
Secretary provided that the “purpose of the regulation
is to give claimants the right to review evidence used to
deny a claim at a time when they have a reasonable
opportunity to address it - - without regard to when the
plan obtained it.” Jd. at 10 (citation omitted). The
Secretary explained:

The right to submit issues and comments in
writing would be meaningless if the claimant
did not have access to those documents which
formed the basis for the ultimate denial of the
claim. The regulation cannot be fairly
interpreted to authorize plans to gather new
evidence after the initial denial, use the
evidence to affirm the denial on appeal, but
never give the claimant the opportunity to
challenge the evidence upon which the plan
ultimately relies . . . . This result is exactly
what the regulation was intended to avoid, and
it wastes the often limited resources of

26

disabled ERISA plan participants, plans, and
the courts by fostering litigation rather than
administrative claim resolution.

Id. at 11.

The Tenth Circuit’s criticism of the Abram decision
would likely apply to Secretary’s stated intention in
promulgating 29 C.F.R. § 2560.503-1 in its Amicus
Curiae brief filed in Russo, as the claim in Russo was
subject to the pre-2000 amendments to the regulations
because it was filed prior to 2002. However, the
Secretary filed its brief in Russo on November 20, 2001,
almost two years after the amendments to the
regulations were enacted. If the Secretary intended the
2000 amendments to the regulations to alleviate a plan
administrator’s responsibility to produce and allow
participants to respond to evidence gathered during the
appeals process, it is highly unlikely that it would have
felt compelled to file an amicus brief in late 2001 in a
district court case, adamantly advocating that the
regulations required participants to be provided with
the opportunity to review and respond to evidence
gathered during the appeals process. However, given
the fact that the DOL has not directly spoken to its intent
in a claim applying the 2000 amendments to the
regulations, the conflict within the circuit courts and the
district courts regarding the intent of the DOL in
promulgating 29 C.F.R. § 2560.503-1(h) will most
certainly continue. Resolution of this matter is essential
to ensure that the courts interpret the regulation
consistent with the purpose of the ERISA statute and
DOL regulations. This conflict can only be resolved by
this Honorable Court and this case presents an ideal
vehicle to provide such a resolution.

27

II. This Honorable Court Should Grant This Petition
Because The Eleventh’s Circuit’s Decision
Contravenes The Purpose Of The DOL
Regulations And Frustrates The ERISA
Administrative Process Intended By Congress
And Fostered By The DOL Regulations.

The Eleventh Circuit’s decision that Reliance
Standard did not deprive Glazer.of a full and fair review
when she was not afforded the opportunity to review
and respond to appeal-level evidence gathered by
Reliance Standard that was ultimately used against her
to support a final benefit determination, and the similar
holding by Metzger in the Tenth Circuit, should be
reviewed and reversed by this Honorable Court.

First, the Eleventh Circuit’s holding that (1) the
DOL regulations require the disclosure of “relevant”
documents at only two distinct stages: following an initial
adverse benefit determination and again following a final
adverse benefit determination, and (2) that the sole
purpose for the production of documents by the
administrator is to enable a claimant to evaluate whether
to appeal an adverse determination, is contrary to both
the broad and specific purposes of the DOL regulations.
Glazer, 524 F.3d at 1246. In its opinion, the Eleventh
Circuit asserted that according to 29 C.F-R. §2560.503-
1(h)(2)(iii), only “relevant” documents are required to
be disclosed by an administrator to a participant, and
that a document only becomes “relevant” * once it “[w]as

8. As the DOL determined that the word “pertinent”
created substantial confusion as to the type of documents that
plan administrators must disclose to plan participants, in the

(Cont'd)

28

relied upon” or ‘[wJas submitted, considered, or
generated in the course of making the benefit
determination.” Jd. The Eleventh Circuit’s reasoning
— because the appeal-level medical reports at issue in
Glazer were not “relied upon” or “used in the course of
making the determination” until Reliance Standard had
actually made the final adverse benefit determination,
disclosure was not required because the documents were
not relevant until the final decision was made — is flawed.
Id. As the Secretary of Labor explained in its Amicus

(Cont’d)

2000 amendments to the regulation, the word “pertinent” was
replaced with the word “relevant.” ERISA Claims Procedure, 65
Fed. Reg. at 70,252. Under the pre-amendment regulations the
DOL merely defined “pertinent documents” as “documents
relating to the denial.” See Brief for the Plaintiff at 10, Russo v.
Hartford Life & Acc. Co., No. 00-938, 2002 WL 32138296 (S.D. Cal.
Feb. 5, 2002) (citing Claims Procedure for Employee Benefit Plans,
42 Fed. Reg. 27,426 (May 27, 1977) and explaining, that “pertinent
documents” includes “all documents gathered by the plan and
relied upon to affirm the imitial denial”). However, in an attempt
to clarify the type of documents that must be disclosed, the DOL
added more enconipaasing language to the definition of “relevant
documents” to include all documents which were “relied upon in
making the determination, or was submitted to the plan,
considered by the plan, or generated in the course of making the
benefit determination, without regard to whether such document,
record, or other information was relied upon in making the
determination.” ERISA Procedure, 65 F‘R. at 70,252. Thus, the
2000 regulations were amended merely to clarify the type of
documents that required disclosure, as contemplated by the 1977
regulations, which the DOL subsequently explained must be
disclosed “at a time when [plan participants] have a reasonable
opportunity to address it.” Brief for the Plaintiff at 10, Russo v.
Hartford Life & Acc. Co., No. 00-938, 2002 WL 32138296 (S.D. Cal.
Feb. 5, 2002).

29

Curiae brief filed in Russo, “the language of the claims
regulation does not limit a plan’s duty to disclose
‘pertinent’ documents’ to evidence received or
developed by the plan prior to the initial claim denial.”
Brief for the Plaintiff at 9, Russo v. Hartford Life &
Acc. Co., No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal.
Feb. 5, 2002). Instead, the Secretary explained, the
right to review and respond “applies to all documents
gathered by the plan and relied upon to affirm the initial
denial.” Jd. at 9-10.

The Eleventh Circuit’s contention that according to
the DOL the sole purpose for the “production of these
documents is to enable a claimant to evaluate whether
to appeal an adverse determination,” and holding that
“(djocuments produced before a decision is made would
not assist a claimant in deciding whether to pursue an
appeal because the claimant would not yet know if there
had been an adverse determination,” places constraints
on the disclosure of documents that are simply not found
in the DOL regulations. Glazer, 524 F'3d at 1246. While
29 C.FR. § 2560.503-1 sets minimum requirements in
the disclosure of relevant documents, nothing in the
regulation limits disclosure of evidence gathered by the
administrator during the administrative appeals process
prior to the final benefit determination. Furthermore,
according to the Secretary, the “purpose of the
regulation is to give claimants the right to review
evidence used to deny a claim at a time when they have
a reasonable opportunity to address it — without regard
to when the plan obtained it.” Brief for the Plaintiff at
10, Russo v. Hartford Life & Acc. Co., No. Civ. 00-938,

9. See supra note 9.

30

2002 WL 32138296 (S.D. Cal. Feb. 5, 2002) (citation
omitted). The Secretary has explained:

The right to submit issues and comments in
writing would be meaningless if the claimant
did not have access to those documents which
formed the basis for the ultimate denial of the
claim. The regulation cannot be fairly
interpreted to authorize plans to gather new
evidence after the initial denial, use the
evidence to affirm the denial on appeal, but
never give the claimant the opportunity to
challenge the evidence upon which the plan
ultimately relies ....

Id. at 11.

Second, the effect of the incorrect decision by the
Eleventh Circuit in Glazer has far reaching implications
that affect the procedural due process rights of ERISA
participants which are at the heart of the ERISA
administrative process. The Eleventh Circuit’s decision
is this: at no stage in the administrative or litigation
process is an ERISA participant like Glazer permitted
to test the credibility of an administrator’s appeal-level
physician’s opinions, proffer evidence to rebut his
conclusions, or properly prepare and present her claim
prior to the closure of the administrative record. The
Eleventh Circuit’s decision has the effect of allowing plan
administrators to solicit and place evidence into the
administrative record, which it ultimately uses against
a plan participant, while forever barring participants
from bringing forth rebuttal evidence at the
administrative level or before the court in litigation.

31

Essentially, plan administrators are being enabled to
insulate the evidence it uses against plan participants
from any meaningful challenge, forcing the reviewing
court to render a decision on the administrator’s
ultimate determination without being privy to the
participant’s response, and while shrouding the
administrator’s decision in deference. Not only does this
deny participants procedural due process rights in
satisfying their burden of proof in their ERISA benefit
claim,” but it is simply contrary to the foundation of a
“full and fair review” under ERISA that requires
“knowing what evidence the decision-maker relied upon,
having an opportunity to address the accuracy and
reliability of that evidence, and having the decision-
maker consider the evidence presented by both parties
prior to reaching and rendering his decision.” Brief for
the Plaintiff at 12, Russo v. Hartford Life & Acc. Co.,
No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal. Feb. 5,
2002) (citing Grossmuller, 715 F.2d at n.5).

This holding, which has the effect of depriving a
participant of procedural due process, disturbs the
balance required to allow the ERISA administrative
framework to carry out the purpose intended by the
DOL, Congress, and the circuit courts. ERISA and the

10. It is uniformly held that it is an ERISA participant’s
burden to prove entitlement to benefits, which the Eleventh
Circuit also required in Glazer. 524 F.3d at 1247. This could entail
proving that one is “disabled” under the plan terms and entitled
to disability benefits, or proving that a procedure was
“medically necessary” and as such covered by a health insurance
plan, or the like depending upon the type of plan benefit, despite
the administrator proffering contrary evidence to deny the
benefit claim.

:

32

respective DOL regulations were created to foster a
comprehensive and fair administrative system for the
efficient resolution of ERISA benefit claims.'! Inherent
in this process are the concepts of exhaustion of
administrative remedies and a deferential standard of
judicial review. The exhaustion requirement promotes
the administrative resolution of claims and alternatively
assists the courts in resolving ERISA benefit
controversies by presenting to the court fully considered
decisions, in which it can afford deference to the
administrator’s decision. However, only if crucial
procedural rights are afforded a participant, is the

11. See Grossmuller, 715 F.2d at 857, explaining:

The House conference report accompanying the act
directed courts to regard ERISA civil actions
brought by participants and beneficiaries ‘as rising
under the laws of the United States in similar
fashion to those brought under § 301 of the Labor
Management Relations Act of 1947.’ H.R. Rep. No.
93-807, 93d (1973), reprinted in 1974 U.S.C.C.A.N.
4639, 5107. Within the labor context federal courts
have consistently favored internal resolution
procedures in order to promote orderly settlement
of disputes, to assure uniform processing and
treatment of claims, and to avert whenever possible
the expense and delay incident to resort to the
courts. See generally Hines v. Anchor Motor Freight,
Inc., 424 U.S. 554, (1976), and Vaca v. Sipes, 386 U.S.
171 (1967). See also, 29 U.S.C. § 173(d). ERISA also
endorsed this policy by conferring broad managerial
discretion upon the pension plan trustees, who
are primarily responsible for devising and
implementing claims procedures.

(citations omitted).

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| administrator deserving of the deference granted it by
the courts. As the Secretary of Labor explained in its
Amicus Curiae brief filed in Russo:

ee ae Bs

The claims regulations must be construed in

a manner that protects claimants, plans, and

the courts. For claimants, knowledge of the
evidentiary basis for the decision ensures that :
they have a reasonable opportunity to !
understand the evidence on which the decision
will be based and to supplement that evidence ‘aa
if appropriate without resorting to litigation .
... For plans and the courts, the claimant’s
opportunity to review and address evidence
used to deny the claim ensures that the final
decision is based upon a complete and
accurate record — the underlying premise
that supports both the deferential standard
of review and the exhaustion of administrative
remedies requirements.

Brief for the Plaintiff at 16, Russo v. Hartford Life &
Ace. Co., No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal.
Feb. 5, 2002) (citations omitted).

Furthermore, an interpretation of the DOL
regulations that requires plan administrators to provide
participants with an oppertunity to review and respond
to appeal-level evidence, ultimately utilized against the
participant, prior to the final benefit determination, is
consistent with the requirement that an ERISA
participant exhaust her administrative remedies. Brief
for the Plaintiff at 14, Russo v. Hartford Life & Acc.
Co., No. Civ. 00-938, 2002 WL 32138296 (S.D. Cal. Feb.

34

5, 2002). This requirement is frustrated if plan
participants are unable to discover the evidentiary basis
for the administrator’s decision until their only option
is a lawsuit. Moreover, it contravenes one of the chief
goals of ERISA, which is to promote the administrative
resolution of ERISA benefit claims." Still further, the
deferential review standard applied in most ERISA
cases’® renders the protections provided by the
regulations even more significant. In most cases, the
administrative review process is the plan participant’s
only opportunity to present her claim, to correct errors
made by the administrator in reviewing the claim, and
to supplement the administrative record prior to judicial
review. Under these constraints, an administrator
depriving a plan participant of the right to review and
respond to evidence used against her and then hiding
behind the cloak of deference is certainly not in concert
with the concept of a full and fair review or the
protections afforded participants under ERISA.
Furthermore, the rule of Glazer and Metzger creates
the incentive for conflicted administrators to refuse to
engage in a meaningful dialogue with the claimant
during the initial claim phase, refrain from fully
investigating initial claims, and to gather and submit
evidence into the administrative record only after an
appeal is submitted, when the claimant is foreclosed

12. See supra note 11.

13. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989), (holding that the default standard of review is
de novo unless “the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan,” then an arbitrary
and capricious standard of review applies).

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from ever responding to the previously undisclosed
information. As the Secretary of Labor provided in its
Amicus Curiae brief filed in Russo, “an interpretation
of the regulation that allows plans to withhold evidence
used to justify a claim denial undermines the rationale
for limiting the court’s review of evidence to what was
before the plan.” Brief for the Plaintiff at 15, Russo v.
Hartford Life & Acc. Co., No. Civ. 00-938, 2002 WL
32138296 (S.D. Cal. Feb. 5, 2002).

Allowing plan participants an opportunity to review
and respond to evidence gathered by the administrator
prior to the final benefit determination ensures that
participants receive the fullness and fairness of review
contemplated by 29 U.S.C. § 1133 and its accompanying
DOL regulations. It also ensures that that chief goals
of ERISA, including the promotion of administrative
resolution of claims and that any adverse claim
determinations are based on a complete administrative
record, are furthered. The issue before this Honorable
Court has far reaching implications for a substantial
portion of the population and promotes non-uniform
claims administration under ERISA. Resolution of this
matter is imperative to prevent frustration of the ERISA
administrative process intended by Congress and the
DOL.

36
CONCLUSION

For the foregoing reasons, petitioner respectfully
requests the Court to grant the petition for a writ for
certiorari in this case.

Respectfully submitted,

ALICIA PAULINO-GRISHAM
DI Law Group

1111 Hypoluxo Road
Suite 110

Lantana, Florida 33462
(561) 202-9170

Attorneys for Petitioner

ep Oe ee ee ese >

la

APPENDIX A— OPINION OF THE :

UNITED STATES COURT OF APPEALS 3

FOR THE ELEVENTH CIRCUIT
DATED APRIL 21, 2008

UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

No. 06-15855
PRISCILLA GLAZER, :
3 Plaintiff-Appellant, f
v.

RELIANCE STANDARD LIFE INSURANCE
4 COMPANY, a Pennsylvania Corporation,

Defendant-Appellee.
: April 21, 2008

Appeal from the United States District Court for the
Southern District of Florida.

Before BIRCH, PRYOR and KRAVITCH, Circuit
Judges.

PRYOR, Circuit Judge:

This appeal raises an issue of first impression in this
Circuit under the Employee Retirement Income
Security Act of 1974: when medical reports relied on by

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Appendix A

a plan administrator during the review of a denial of
benefits must be produced to the claimant for her to
receive a “full and fair review.” 29 U.S.C. § 1133(2).
Priscilla Glazer appeals a summary judgment against
her complaint about the denial of her application for long
term disability benefits by Reliance Standard Life
Insurance Company. /d. § 1132(a)(1)(B). Glazer argues
that Reliance failed to provide her with a “full and fair
review” of its initial decision to deny her application for
benefits, the district court applied an incorrect standard
of review, and Reliance wrongly denied her benefits.
We reject Glazer’s argument that Reliance denied her
a “full and fair review”; the pertinent federal regulations
did not require Reliance to produce the medical reports
requested by Glazer during the pendency of the review.
We also conclude that the district court applied the
correct standard of review and the decision of Reliance
to deny Glazer’s application for benefits was right.
We affirm.

I. BACKGROUND

For several years, Glazer was employed as a senior
technical writer for The Ultimate Software Group, which
offered employees insurance for long-term disability
with a plan provided by Reliance. The plan granted
Reliance discretion “to determine eligibility for benefits.”
The plan also provided that an insured is “totally
disabled” if the insured “cannot perform the substantial
and material duties of his/her regular occupation.”
Glazer began to experience pain in her shoulders in 1996
and has since been diagnosed with several conditions,

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including myofascial pain syndrome, fibromyalgia,
cervical spondylosis, chronic cervical strain, and

radiculopathy.

In June 2003, Glazer stopped working based on the
recommendation of her physician, Dr. Thomas Hoffeld,
and Glazer applied for disability benefits under the plan.
During the fall of 2003, Hoffeld found that Glazer had
difficulty typing and that she could sit only 33 percent
of the time.

On January 13, 2004, Reliance approved Glazer’s
application. In April 2004, Hoffeld opined that he did
“not see [Glazer] returning” to work. Dr. Alan Novick
began treating Glazer in October 2003 and noted
improvement of her pain in May 2004.

In March 2004, Reliance requested updated medical
records from Glazer’s physicians. Hoffeld did not
respond to the request. On May 7, 2004, Novick
represented on a form provided by Reliance that Glazer
could sit continuously; perform basic physical activities,
including simple grasping and fine manipulation; and
work at a sedentary level. Based on an interview of
Glazer, Novick’s representations, and job descriptions
of Glazer’s occupation, Reliance concluded that Glazer
was able to perform the requirements of her job.

In July 2004, Reliance terminated Glazer’s long-
term disability benefits. Glazer visited Dr. Benjamin
Lechner, whom she had not seen since February 2003.
Glazer submitted to Reliance a report prepared by

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Appendix A

Lechner in which he reviewed her medical conditions,
noted she could not use a computer, and opined that
Glazer was “disabled for gainful employment due to this
condition.” Glazer also requested that Reliance review
its benefits determination.

Glazer saw Novick in July 2004, and Novick reported
that Glazer was feeling better and had remained stable.
Novick saw Glazer once in November 2004, twice in
February 2005, and once in March 2005. During these
examinations, Glazer complained of increased pain, but
Novick’s description of her condition remained
consistent.

As part of the review of its decision to terminate
Glazer’s benefits, Reliance submitted Glazer’s medical
records to Dr. William Hauptman for an independent
peer review. After reviewing Glazer’s records,
Hauptman concluded that Novick’s evaluation of
Glazer’s capabilities in May 2004 was consistent with
her medical records. Hauptman reasoned that the
improvements in Glazer’s physical capabilities after
Hoffeld’s evaluation in 2003 were the result of Novick’s
treatment. Hauptman also concluded that there was no
medical evidence to support Glazer’s complaints of
increased pain.

After its review, Reliance denied Glazer’s application
for long term disability benefits. Glazer filed this action
in the district court. The district court granted summary
judgment in favor of Reliance.

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Appendix A
Il. STANDARD OF REVIEW

We review a summary judgment de novo. Williams
v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1134 (11t
Cir.2004). :

III. DISCUSSION

We evaluate Glazer’s arguments in three parts.
First, we consider whether Reliance denied Glazer a “full
and fair review.” Second, we consider whether the
district court applied the correct legal standard. Third,
we consider whether the decision of the plan
administrator was “wrong.”

A. To Provide Glazer a “Full and Fair Review,”
Reliance Was Not Required to Produce
Hauptman’s Report Earlier.

Glazer argues that she was not provided a “full and
fair review” of the denial of her request for benefits as
required by ERISA. 29 U.S.C. § 1133(2). If benefits are
denied, section 1133 requires the plan administrator,
“{iJn accordance with regulations of the Secretary,” to
provide a “full and fair review . .. of the decision denying
the claim.” Jd. § 1133. The administrator must “[p}rovide
... upon request... all documents, records, and other
information relevant to the claimant’s claim for benefits”
for the review to qualify as a “full and fair review.”
29 C.ER. § 2560.503-1(h)(2)(iii). The plan administrator
must also “take[ ] into account all comments, documents,
records, and other information submitted by the
claimant relating to the claim.” /d. § 2560.503-1(h)(2)(iv).

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Appendix A

Glazer argues that the failure of Reliance to provide
her with a copy of the report produced by Hauptman
during the pendency of the review of the initial denial
of benefits deprived her of a “full and fair review.”
Reliance responds that it was not required to produce
the documents it relied upon while it reviewed the initial
denial of benefits; the production occurs after a final
decision is reached. We agree with Reliance.

Glazer’s argument is contrary to the plain text of
the regulations. Subsection (h)(2)(iii) requires the plan
administrator to produce all “relevant” documents. A
document is relevant if it “[w]Jas relied upon” or “[wJas
submitted, considered, or generated in the course of
making the benefit determination.” Jd. § 2560.503-
1(m)(8)(i)-(ii). Reliance had not “relied upon” the
Hauptman report or used the report “in the course
of making the benefit determination” until the
determination had been made. After Reliance reached
its final decision, all relevant documents generated
during the review and initial claim determination had
to be produced to the claimant. Jd. § 2560.503-1(i)(5).
This requirement would be superfluous if the claimant
had a right to the documents during the pendency of
the review. See Kornblau v. Dade County, 86 F.3d 193,
195 (11th Cir.1996) (courts should avoid rendering other
provisions of a regulation superfluous or inoperative).

The only other circuit court that has decided this
issue reached the same conclusion as we do. The Tenth
Circuit held, in Metzger v. UNUM Life Insurance
Company of America, that “subsection (h)(2)(iii) does

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Appendix A

not require a plan administrator to provide a claimant
with access to the medical opinion reports of appeal-
level reviewers prior to a final decision on appeal.” 476
F:3d 1161, 1167 (10th Cir.2007). The court explained that
requiring these documents to be produced earlier would
create “an unnecessary cycle of submission, review, re-
submission, and re-review.” Jd. at 1166. The court agreed
with the Department of Labor that the purpose of the
production of these documents is to enable a claimant
to evaluate whether to appeal an adverse determination.
Id. at 1167 (quoting ERISA Claim Procedure, 65
Fed.Reg. 70,246, 70,252 (Nov. 21, 2000)). Documents
produced before a decision is made would not assist a
claimant in deciding whether to pursue an appeal
because the claimant would not yet know if there has
been an adverse determination. /d.

B. The District Court Applied the
Correct Legal Standard.

Glazer argues that the district court erred when it
granted summary judgment because there were factual
disputes about whether Glazer was disabled, but this
argument misunderstands our standard of review. Our
review of a denial of benefits is for whether the decision
of the administrator was arbitrary and capricious. Jett
v. Blue Cross & Blue Shield of Ala., 890 F:2d 1137, 1139
(11th Cir.1989). “When conducting a review of an ERISA
benefits denial under an arbitrary and capricious
standard (sometimes used interchangeably with an
abuse of discretion standard), the function of the court
is to determine whether there was a reasonable basis

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Appendix A

for the decision, based upon the facts as known to the
administrator at the time the decision was made.” /d.
“(W]e review both the administrator’s construction of
the plan and concomitant factual findings.” See
Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1451
(11th Cir.1997).

This Court has created “a well-defined series of steps
in reviewing a denial of benefits decision in an ERISA
case” to determine whether the decision of the
administrator was arbitrary and capricious. Tippitt v.
Reliance Standard Life Ins. Co., 457 F.3d 1227, 1231-32
(llth Cir.2006). “At each step, the court makes a
determination that results in either the progression to
the next step or the end of the inquiry.” /d. at 1232
(quoting HCA Health Servs. of Ga., Inc. v. Employers
Health Ins. Co., 240 F.3d 982, 993 (11th Cir.2001))
(internal quotation marks omitted). First, the court
“examin[es] the plan documents to determine whether
they grant the administrator discretion” in making
benefit determinations. /d. If the administrator has
discretion under the plan, “then at a minimum, the court
applies arbitrary and capricious review and possibly
heightened arbitrary and capricious review.” Jd. (quoting
HCA, 240 F:3d at 993) (internal quotation mark omitted).
Under either form of review, the court is limited to “the
facts as known to the administrator at the time the
decision was made.” Jett, 890 F.2d at 1139.

“(Rjegardless of whether the arbitrary and
capricious review or the heightened form of that
standard of review applies,” the court reviews the

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Appendix A

decision by the administrator to determine whether it
was “wrong.” Tippitt, 457 F.3d at 1232; see also Levinson
v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326
(11th Cir.2001) (quoting Brown v. Blue Cross & Blue
Shield of Ala., Inc., 898 F.2d 1556, 1566 n. 12 (11th
Cir.1990)). A decision is “wrong” if, after a review of the
decision of the administrator from a de novo perspective,
“the court disagrees with the administrator’s decision.”
Williams, 373 F.3d at 1138 & n. 8. The court must |
consider, based on the record before the administrator
at the time its decision was made, whether the court
would reach the same decision as the administrator. If
the court determines that the plan administrator was
right, the analysis ends and the decision is affirmed.
Tippitt, 457 F.3d at 1232.

Glazer’s argument that the district court applied the
wrong standard fails. Although there was‘a dispute
about whether Glazer was disabled, there was no dispute
about what was in the record when Reliance made its
decision. The district court had to review that record
and decide whether the resolution of the dispute by
Reliance was wrong. The district court reviewed the
record and determined that the decision by Reliance
was right, which ended the analysis of whether the
decision of Reliance was arbitrary and capricious. /d.
The district court applied the correct standard of review.

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Appendix A

C. The Decision by Reliance to Deny Benefits
Was Right.

Glazer also contends that the record establishes that
she is entitled to disability benefits. To evaluate that
argument, we consider, as the district court did, whether
the decision of Reliance was “wrong.” Jd. We are limited
to the record that was before Reliance when it made its
decision. Jett, 890 F.2d at 1139. Glazer bears the burden
to prove that she is disabled. Horton v. Reliance
Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th
Cir.1998).

The denial of Glazer’s application for benefits by
Reliance was not wrong. Giazer failed to establish that
she is disabled. Glazer asserts that the record “clearly
demonstrated” that she is disabled under the plan, but
she fails to explain how her condition prevents her from
performing the “substantial and material” duties of her
occupation.

The only support in the record for Glazer’s position
is Hoffeld’s statement and Lechner’s report, but that
support is unpersuasive. Hoffeld stated that Glazer was
not capable of performing her occupation in April 2004,
but his opinion was formed before Novick’s treatment
led to an improvement in Glazer’s condition in May 2004.
Hoffeld also failed to respond to the request from
Reliance for updated medical records. Lechner opined
that Glazer was “disabled” in July 2004, but Lechner,
who had not seen Glazer in over one year, expressed an

opinion that was contrary to both the contemporaneous.

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Appendix A

observations of Novick and the independent peer
review by Hauptman. Neither Hoffeld nor Lechner
compared Glazer’s physical capabilities with the
requirements of her occupation.

The record contains ample evidence that Glazer is
not disabled within the meaning of the policy. Her
physician, Novick, reported that she was capable of
sitting for an eight-hour day, frequent walking, standing,
climbing stairs, and simple grasping with her hands.
Reliance compared this information about her physical
capabilities with a description of her job and determined
that she was capable of performing her job
requirements. Reliance also relied on the opinion of its
reviewing doctor, Hauptman, who reviewed Glazer’s
medical records and stated that the record supported
Novick’s findings and that she was capable of working.

We agree with the district court that Glazer failed
to establish that she was totally disabled. Because we
conclude that Reliance was right, our analysis of the
denial of Glazer’s application ends. The district court
was correct to enter summary judgment in favor of
Reliance.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of
Reliance Standard Life Insurance Company.

AFFIRMED.

12a

APPENDIX B — ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA

DATED AND FILED SEPTEMBER 25, 2006

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 06-60112-CIV-
MIDDLEBROOKS/JOHNSON

PRISCILLA GLAZER,
Plaintiff,
vs.

RELIANCE STANDARD
LIFE INSURANCE COMPANY,

Defendant.

ORDER ON DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

THIS CAUSE comes before the Court on the
Defendant’s Motion for Summary Judgment (DE 27)
filed on July 21, 2006. Plaintiff responded in opposition
to Defendant’s Motion (DE 29-31). Defendant filed a
Reply (DE 32). The Court has reviewed the record, the
submissions of counsel, the relevant statutory and case
law, and is otherwise fully advised in the premises.

13a

Appendix B

Introduction

The following facts are taken from the submissions
of the parties, including Defendant’s Motion for
Summary Judgment, Plaintiff’s Response in Opposition
to the Motion to Summary Judgment, the Memorandum
of law in support of her Opposition, and Defendant’s
Reply.

This case involves a claim for long-term disability
benefits brought by Plaintiff Priscilla Glazer (“Glazer”),
who was a senior technical writer for The Ultimate
Software Group. Defendant Reliance Standard Life
Insurance Company (“Reliance”) insured the long-term
disability plan (“Plan”) used by The Ultimate Software
Group.

Glazer’s job entailed writing software documentation,
software release notes, computer reports, and
communicating via email. As early as 1996, Glazer had
pain in her shoulder when using a computer. She
continued to work despite this pain and sought medical
treatment from her family physician, Dr. Mark H. Lazar.

Eventually, in 2003 she reported an increase in pain and

began to see other doctors for treatment.

In 2003, Glazer went to see Dr. Thomas A. Hoffeld,
specializing in orthopaedics, complaining of increased
pain in her shoulders, arms, and hands. At that time,
Hoffeld advised her to stay out of work a couple days
and then return with no restrictions. She continued to
see Hoffeld and to report an increase in her symptoms.

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Appendix B

By June 2003, Hoffeld recommended she stop working,
at least temporarily to “let things settle down a bit.”
She continued to have pain in her neck and reported

pain from her neck to her left shoulder. Hoffeld reported —

“limited motion in all parameters of cervical range of
motion,” but “upper extremities show[ed] good range
of motion.” Glazer tried using a special pillow and a
cervical collar. She continued to have trigger points of
pain which she reported were especially present when
she used her mouse. During the following couple months,
the pain continued. Glazer had diagnoses of arthritis,
osteopenia, and myalgia/myositis. She underwent
physical therapy, got diagnostic testing, and tried
medically to keep her pain under control. By late
August, Hoffeld determined Glazer was not a surgical
candidate and recommended she see a physiatrist to help
her with pain management. Glazer was also seeing Dr.
Benjamin Lechner, a rheumatologist, who had diagnosed
her with Fibromyalgia and Myofascial pain. He treated
her with various medications and recommended home
exercise and relaxation techniques to help her with her
symptoms.

Glazer continued to stay out of work. In October
2003, Glazer went to see Dr. Alan Novick, a physiatrist,
for an evaluation of her chronic neck pain. Novick’s
treatment included trying various medications to help
her with her pain. Novick also recommended home
exercise and physical therapy. In April 2004, Novick saw
little improvement in her condition and determined
trigger point injections were appropriate. Glazer
continued on some medication and received the trigger

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point injections. In May 2004, after having received the
trigger point injections, Novick’s notes indicate that
Glazer was “doing better with the pain.” During that
visit, Glazer was advised not to hold her head in one
position for a prolonged period of time such as during
reading and to take frequent breaks to avoid the
tightening of muscles.

In the meantime in 2003, Glazer made her claim for
long-term disability under the Plan. The Plan’s
definition of totally disabled was that “an Insured cannot
perform the substantial and material duties of his/her
regular occupation.” In January 2004, Reliance
approved her claim determining that she became
disabled on June 13, 2003. In March 2004, Reliance
referred Glazer’s matter to a rehabilitation service,
Paramount, for an evaluation. Paramount interviewed
Glazer, who expressed doubt as to whether she could
physically resume any type of gainful employment.
Glazer continued to have constant cervical pain. She
reported that she was able to drive and perform
household tasks, including cooking, cleaning, and
laundry. As part of its evaluation, Paramount sought
updated medical information from Hoffeld and Novick.
Only Novick responded. In response to Paramount’s
request, on May 20, 2004, Novick completed a physical
capacities form (“PCQ”). The PCQ asked specific
questions about Glazer’s physical capabilities. Novick
indicated Glazer could sit continuously, stand, walk, and
climb stairs frequently, and perform sedentary lifting.
In evaluating Glazer’s upper extremities, Novick
indicated she could frequently perform simple grasping

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Appendix B

and fine manipulation and occasionally reach above her
mid chest, waist/desk level, and pull/push. Paramount
evaluated these limitations with the definition of a
writer for technical publications as published in the
Dictionary of Occupational Titles published by the
Department of Labor (“DOT definition”). The DOT
general definition defined her position as a sedentary
one which occasionally required lifting, carrying,
pushing, and pulling of ten pounds, but was mostly
sitting and may involve standing or walking for brief
periods of time. Based on Novick’s PCQ and the DOT
definition, Reliance determined, with Paramount’s
assistance, that Glazer was able to perform her
sedentary level job. Reliance informed Glazer of this by
letter in July 2004.

During this time, Glazer continued to see Novick
and in July 2004 went to see Lechner again after having
not seen him since February 2003. At his July 2004
evaluation of Glazer, Novick reported that she remained
stable and functional on her current medication regime
so she would continue on that. Lechner, on the other
hand, opined in that same month that Glazer was
disabled from gainful employment, diagnosing her with
cervical spondylosis with nerve root compression. In
September 2004, Glazer presented to Novick with new
pain and stiffness. Novick prescribed medication and
recommended doing blood work to check for additional
causes of her pain.

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Appendix B

Glazer appealed Reliance’s decision. During the
appeal, Reliance attempted to have an independent
medical examination (“IME”) of Glazer completed.
However, the IME was not completed. Glazer went to
the examination with her lawyer and a court reporter.
The doctor conducting the IME informed them that they
could not all fit in the examining room. The doctor
offered to participate in a deposition after the
examination was completed, but Glazer did not accept
that offer. Instead she did not go through with the IME.
Reliance did not try to schedule another IME. Instead,
Reliance asked Dr. William Scott Hauptman to do an
independent review of Glazer’s medical records.

In Hauptman’s initial review of Glazer’s file, he noted
that the physical capabilities indicated by Novick in the
May 2004 PCQ were of a greater capacity than those
indicated in her records from December 2003 and while
subsequent records, such as that from Lechner in July
2004, indicated a possible deterioration, for a specific
determination Hoffeld would have to obtain more
medical records from all medical providers. In closing,
Hauptman opined that the “[m]edical records presented
for review currently do not provide an objective medical
basis upon which to support the paticnt’s increased
subjective complaints documented by Dr. Lechner, July
13, 2004.” In his second report, after having reviewed
additional medical records, Hauptman opined that the
physical capacities documented by Novick in May 2004
were consistent with the medical records presented to
him through the last office visit, September 29, 2004,
with Novick. Hauptman opined that the medical records

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Appendix B

did not support the possibility of deterioration and while
Glazer presented to Novick with new pain in her finger,
such pain did not significantly impact the capacities of
her upper extremities as outlined by Novick in May 2004.
Hauptman conducted a third review of Glazer’s claim in
May 2005 after having received additional medical
records. Hauptman reviewed medical records through
March 2005 and noted that while in February 2005 Glazer
had an increase in pain, on March 10, 2005, Glazer
reported to Novick that she felt slightly better than her
last visit and Novick determined it was not necessary
to restart Glazer on the Duragesic patch. In conclusion,
Hauptman again found nothing new in Glazer’s medical
records that negated Novick’s May 2004 evaluation of
her physical capacities. Based on Hauptman’s review
and a review by rehabilitation services, Reliance denied
Glazer’s appeal determining that she “is capable of
performing her own occupation.”

The Plan includes the following provision under the
claims provisions section:

Reliance Standard Life Insurance Company
shall serve as the claims review fiduciary with
respect to the insurance policy and the Plan.
The claims review fiduciary has the
discretionary authority to interpret the Plan
and the insurance policy and to determine
eligibility for benefits. Decisions by the claims
review fiduciary shall be complete, final and
binding on all parties.

:
,

19a

Appendix B

Reliance was the claims administrator of the Plan
and the fiduciary charged with making benefit
determinations under the Plan. As a result of this
termination of benefits, Glazer brought this action
pursuant to the Employee Retirement Income Security
Act of 1947 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B).

Legal Standard

Summary judgment is appropriate only when there
are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the burden of meeting this
exacting standard. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970). In applying this standard, the
evidence, and all reasonable factual inferences drawn
therefrom, must be viewed in the light most favorable
to the non-moving party. See Arrington v. Cobb County,
139 F:3d 865, 871 (11th Cir. 1998); Allen v. Tyson Foods,
Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The non-moving party, however, bears the burden
of coming forward with evidence of each essential
element of their claims, such that a reasonable jury
could find in their favor. See Earley v. Champion Int'l
Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). The non-
moving party “[mJay not rest upon the mere allegations
and denials of [its] pleadings, but [its] response . .. must
set forth specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P 56(e). “The mere existence
of a scintilla of evidence in support of the [non-movant’s]

20a

Appendix B

position will be insufficient; there must be evidence on
which the jury could reasonably find for the
[non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). Further, conclusory, uncorroborated
allegations by a plaintiff in an affidavit or deposition will
not create an issue of fact for trial sufficient to defeat a
well supported summary judgment motion. See Earley,
907 F.2d at 1081. The failure of proof concerning an
essential element of the non-moving party’s case
necessarily renders all other facts immaterial and
requires the court to grant the motion for summary
judgment. See Celotex, 477 U.S. at 322.

The burden is on Glazer to prove that she is entitled
to the benefits she seeks. See Horton v. Reliance
Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.
1998). Reviews of ERISA decisions are subject to a very
particular and multi-step framework as discussed in
Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132,
1137-38 (11th Cir. 2004). The analysis begins with a
determination of whether the administrator’s decision
was “wrong,” essentially determining if the Court
disagrees with the administrator’s decision. /d. If the
decision was not “wrong,” the judicial inquiry is complete
and the decision must be affirmed. /d. If the decision
‘was wrong, then I must determine if the plan gave the
administrator discretion to review claims. /d. at 1138. If
the plan does not give the administrator discretionary
authority to construe the terms of the plan or determine
the eligibility for benefits and the decision is wrong, the
decision must be reversed. Jd. On the other hand, if the
decision is wrong and the plan granted the administrator

2la

Appendix B

the requisite discretion, the administrator’s decision is
subject to an arbitrary and capricious standard of review.
Id. Under this standard of review, the question becomes
whether based on the facts known to the administrator
at the time, there were reasonable grounds in the record
to support its decision. /d.; Jett v. Blue Cross & Blue
Shield of Ala., Inc., 890 F.2d 1137, 1139 (11th Cir. 1989).
If no reasonable basis existed, the analysis is complete
and the decision must be reversed. Williams, 373 F.3d
at 1138. If a reasonable basis existed for the decision,
the analysis continues to determine if the administrator
operated under a conflict of interest. Jd. Finding no
conflict of interest requires affirming the decision. /d.
Where there is a conflict of interest, the heightened
arbitrary and capricious standard is to be employed to
review the decision. Jd. The heightened arbitrary and
capricious standard of review is “somewhere between
the de novo and ‘mere’ arbitrary and capricious
standards.” Jd. It is under this framework that I analyze
Reliance’s decision to terminate Glazer’s benefits.

Analysis
The parties disagree about the facts surrounding

the IME and argue about the situation’s impact on
Glazer’s claim.' I do not find it necessary to address that

1. Reliance argues Glazer failed to exhaust her
administrative remedies by refusing to allow the IME to be
conducted. Therefore, it argues, Glazer’s claim is barred relying
on Zalka v. Unum Life Ins. Co. of America, 65 FSupp.2d 1369
(S.D. Fla. 1998). Glazer responds that it is her legal right under

(Cont'd)

22a

Appendix B

issue because even on the merits Reliance’s motion
should be granted. Therefore, I begin my analysis with
a discussion of whether Reliance’s decision in July 2004
was wrong. For the reasons that follow, I determine
Reliance’s decision was not wrong.

The record before Reliance supported its decision
that Glazer was capable of performing her job. The
Plan’s definition of total disability was that “an Insured
cannot perform the substantial and material duties of
his/her regular occupation.” Glazer argues that she is
disabled under this standard unless she can perform
her own job, “as she was performing it prior to her
disability.” Pl. Opposition at 14. Glazer’s own description
of her job entailed prolonged repetitive movement, fine
manipulation, grasping with both hands, prolonged
coordinated eyes, hands, arms, and neck movement,
prolonged sitting, twisting, reaching, and carrying. The
general definition as outlined by the Department of

(Cont'd)

Florida law to have her lawyer present for the IME citing US.
Sec. Inc. Co. v. Cimino, 754 So.2d 697 (Fla. 2000). Glazer also
points out that when Reliance denied her claim, it informed her
that she had exhausted her administrative remedies. Reliance
disagrees about whether Glazer had an absolute right to be
accompanied by her lawyer and a court reporter. It asserts that
there is no absolute right because Cimino provides that the
opposing party can put forth a valid reason, which it had here,
when not allowing a claimant to have her attorney present at
the IME. Either way, while conducting an IME may be a
preferable route in these type of claims, there is no requirement
that the administrator complete one. See Fought v. Unum Life
Ins. Co. of America, 379 F.3d 997, 1015 (10th Cir. 2004).

23a

Appendix B

Labor defined a technical writer’s position as one that
is sedentary, requiring occasional lifting, carrying,
pushing, and pulling of ten pounds, but was mostly
sitting and may involve standing or walking for brief
periods of time. Under the specific physical demands,
the general definition provides for occasional reaching
and frequent handling and fingering. The language of
the Plan uses the term “regular occupation,” which is
not defined in the Plan. In such situations it is not
uncommon for the administrator to turn to the
Dictionary of Occupational Titles published by the
Department of Labor. See Gallagher v. Reliance
Standard Life Ins. Co., 305 F.3d 264, 271 (4th Cir. 2002);
Richards v. Hartford Life and Accident Ins. Co., 356
F.'Supp.2d 1278, 1287 (S.D. Fla. 2004). Similar to the
employee in Gallagher, Glazer fails to point out specific
duties that are substantial and material parts of her job
which are not included in the DOT definition. See
Gallagher, 305 F.3d at 272. It does not appear that the
two definitions are that far apart. Therefore, Reliance’s
use of the general definition in evaluating Glazer’s claim
was not inappropriate.

The analysis now moves on to the evidence in the
record regarding Glazer’s physical limitations and
Reliance’s evaluation as to how such physical limitations
impacted her ability to perform the substantial and
material duties of her occupation. After working with
Glazer for a few months, Hoffeld determined that she
was not a surgical candidate. Hoffeld’s report in October
2003 stated that “[rJight now there is again no real
change in her situation and at least from an orthopedic

24a

Appendix B

sense she is at maximum medical improvement. Whether
she will do so with Dr. Novick remains to be seen.” In
December 2003, Hoffeld completed a PCQ form
indicating that the only activities Glazer could frequently
do were standing and walking. She could not sit more
than occasionally. Hoffeld did not check an exertion level
on the PCQ. As to her upper extremities, Hoffeld
indicated that Glazer could do no pushing/pulling, and
all other tasks she could only do occasionally, such as
simple grasping, reaching above mid chest, waist/desk
level, fine manipulation, and feeling/tactile sensation.
Novick’s first impression was cervical spinal stenosis and
chronic cervical strain. He planned to treat her with
medication, indicated she may need injections, and
possibly surgery. Glazer continued seeking treatment
with Novick. His treatment continued, trying various
medications until determining that she was a candidate
for trigger injections. It was after receiving these trigger
injections that Glazer reported to Novick feeling better.
This coincides with the timing of when Novick completed
the PCQ Reliance, at least in part, relied on. The only
item Novick’s PCQ indicated Glazer was completely
restricted from was climbing ladders. On this form, the
exertion level question was answered. The form
specifically asked what exertion level the patient could
work at. Novick responded sedentary lift, which was
defined as exerting up to ten pounds of force
occasionally, and/or a negligible amount of force
frequently. There were no complete restrictions
regarding Glazer’s upper extremities. The Novick PCQ
indicated Giazer could frequently perform simple
grasping and fine manipulation and continuously feel

25a

Appendix B

and have tactile sensation. Reaching above mid chest
and waist/desk level continued to be restricted to
occasionally, as was pulling/pushing, unlike in Hoffeld’s
PCQ where he said Glazer could not push or pull at all.
Novick’s notes from his May 2004 visit with Glazer only
included one limitation. It was that Glazer not hold her
head in one position for a prolonged period of time,
taking frequent breaks. At that visit, Novick reported
that Glazer was “doing better with the pain, although,
she [wa]s frustrated that it [wa]s not completely
resolved.” Over two months later, Novick saw Glazer
again and noted that she remained stable and functional
on her current medication regime. Novick’s notes
indicate Glazer “[wa]s using the treadmill approximately
20 minutes three times per week.” Glazer’s medical
records from Novick’s office and Novick’s PCQ indicate
an improvement in her condition compared to when she
was seeing Hoffeld and first stopped working. Given
these physical limitations and capacities, it is difficult to
determine what substantial and material duty Glazer
could not do at her job as a senior technical writer.
Glazer’s own definition of her job includes prolonged
neck movement. Novick did specifically tell her not to
keep her neck in one place, but stated that she could
take frequent breaks. Glazer does not articulate how
taking frequent breaks from holding her neck in one
place prohibits her from doing a substantial and material
duty of her job.

Glazer also argues that Reliance’s decision is wrong
where it is based on one document despite voluminous
documentation contradicting that document. This

26a

Appendix B

argument is not persuasive. Reliance’s decision is
supported, not only by the PCQ completed by Novick,
but also by his comments of her May and July 2004 visits.
Glazer’s own treating doctor indicated that she could
sit for eight hours a day, do sedentary lifting, and
frequently grasp and perform fine manipulation. Glazer
was able to drive, perform household duties, and use a
treadmill for twenty minutes a day three times a week.
The question is not whether there is more evidence
supporting Glazer’s disability than her lack of disability.
The question is whether the decision made by Reliance
was wrong. Given Glazer’s regular occupation and the
medical records presented to Reliance at the time it
made its decision, the decision was not wrong.

Glazer brings up two other arguments to cast doubt
on Reliance’s decision. The first is that Novick never
got information about her job. Glazer does not provide
any support for the proposition that Novick must receive
such information. The PCQ specifically states “[t]he
patient can work at the following exertion level(s).”
Novick responded by checking the sedentary lift
definition. This answer implies that Novick was of the
opinion that Glazer could work. Reliance then presented
such information to an independent doctor for an
evaluation. Hauptman also agreed with Novick’s
limitations and capacities. This nonexamining doctor’s
opinion is also considered medical evidence in such cases.
See Gannon v. Metropolitan Life Ins. Co., 360 F.3d 211,
214 (1st 2004). Novick indicated, and Hauptman agreed,
that Glazer had the ability to perform sedentary work.
Reliance was under no obligation to provide Novick with

27a

Appendix B

specific duties of Glazer’s job. The other argument
Glazer raises is her social security determination. Glazer
has been determined totally disabled for social security
purposes.” The social security decision was made
after Reliance made its final decision. Therefore, the
Court need not consider it in evaluating Reliance’s
determination. See Richards, 356 F.Supp.2d at 1288.
Furthermore, as Reliance points out, while it may
consider a social security determination, such
determination is not dispositive. See Whatley v. CNA
Ins. Cos., 189 F-3d 1310, 1314 n.8 (11th Cir. 1999). Neither
of these arguments cast doubt on Reliance’s decision.
I do not disagree with Reliance’s decision.

However, even if Reliance’s decision was wrong, it
was not arbitrary and capricious, even under the
heightened standard.’ A decision is not to be overturned

2. Glazer’s social security disability application was

originally denied. She appealed the decision and in January

2006 a hearing was held before an Administrative Law Judge.
The Social Security Administration changed its determination
issuing a decision in January 2006. This is some time after
Reliance made the decision being reviewed by this Court.

3. Glazer argues that the heightened arbitrary and
capricious standard is applicable where Reliance insures the
Plan and made the decision. Reliance argues that its decision
should be affirmed regardless of what standard of review is
applicable. The plan clearly gives Reliance the requisite
discretion. However, Reliance is the insurer of the Plan.
Therefore, as discussed in Brown v. Blue Cross and Blue Shield
of Alabama, Inc., 898 F.2d 1556, 1563 (11th Cir. 1990) the
modified arbitrary and capricious standard is applicable.

28a

Appendix B

merely because the Court disagrees with the decision.
See Turner v. Delta Family-Care Disability & Surv.
Plan, 291 F:3d 1270, 1274 (11th Cir. 2002)(discussing that
“i]t is irrelevant that the court or anyone else might
reach a different conclusion.” under the arbitrary and
capricious standard of review). The arbitrary and
capricious standard of review requires that the
administrator’s decision not be unreasonable or
inconsistent with the record before the administrator.
Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1452
(llth Cir. 1997). The heightened arbitrary and
capricious standard also requires deference to the
administrator’s decision, but the review is to be
contextually tailored to the facts of the case. Levinson
v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326
(11th Cir. 2001). This in between standard of review is
somewhere between de novo and arbitrary and
capricious. Williams, 373 F.3d at 1138. Having
determined that I do not find the decision wrong, with
the added amount of deference required, even if it is
not the same amount required by the arbitrary and
capricious standard, the decision would also be affirmed.

There exists a reasonable basis in the record before
the administrator that Glazer was able to perform a
sedentary job. There is no support in the record that
Glazer’s job was not a sedentary one. Reliance relied
upon the opinion of one of Glazer’s own treating doctors
and an independent review of her medical records by
another doctor. Glazer presents no reason to suspect
that Novick’s opinion is somehow biased. In fact, the
record indicates that Glazer’s own lawyer recommended

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29a

Appendix B

she see Novick. Glazer points to the determination by
Lechner that she it totally disabled. Lechner seems to
disagree with Novick. Lechner made such determination
on July 13, 2004, one day after Reliance wrote Glazer’s
letter terminating her benefits. When Lechner made
that determination, he had not seen Glazer in over a
year. Lechner’s determination is at odds with Novick’s.
This Court’s role is not to resolve conflicts between
doctors in these cases. The Court must only decide under
these particular circumstances whether Reliance’s
decision was reasonable looking particularly at Glazer’s
medical records and the requirements of her job.
Glazer’s arguments do not persuade me that Reliance’s
decision is incorrect under the heightened arbitrary and
capricious standard.

It is

ORDERED AND ADJUDGED that the Defendant’s
Motion for Summary Judgment (DE 27) is GRANTED.

DONE AND ORDERED in Chambers at West Palm
Beach, Florida, this 25 day of September, 2006.

s/ Donald M. Middlebrooks
DONALD M. MIDDLEBROOKS
UNITED STATES DISTRICT JUDGE

cc: All Counsel of Record

a :

30a

APPENDIX C — ORDER OF THE UNITED
STATES COURT OF APPEALS DENYING
PETITION FOR REHEARING
FILED JUNE 13, 2008

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 06-15855-BB
PRISCILLA GLAZER,
Plaintiff-Appellant,

versus

RELIANCE STANDARD LIFE INSURANCE
COMPANY, a Pennsylvania Corporation,

Defendant-Appellee.

On Appeal from the United States District Court for
the Southern District of Florida

ON PETITION(S) FOR REHEARING AND
PETITION(S) FOR REHEARING EN BANC

Before: BIRCH, PRYOR and KRAVITCH, Circuit
Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no
Judge in regular active service on the Court having

3la

Appendix C

requested that the Court be polled on rehearing en banc
(Rule 35, Federal Rules of Appellate Procedure), the
Petition(s) for Rehearing En Banc are DENIED. |

ENTERED FOR THE COURT:

s/ [illegible]
UNITED STATES CIRCUIT JUDGE

| 32a

| APPENDIX D — REGULATION INVOLVED
29 C.ER. § 2560.503-1

§ 2560.503-1 Claims procedure.

(a) Scope and purpose. In accordance with the
authority of [ERISA], 29 U.S.C. 1133, 1135, this
section sets forth minimum requirements for
employee benefit plan procedures pertaining to
claims for benefits by participants and
beneficiaries (hereinafter referred to as
claimants) ....

4 * *

(h) Appeal of adverse benefit determinations.

(1) In general. Every employee benefit plan
shall establish and maintain a procedure by
which a claimant shall have a reasonable
opportunity to appeal an adverse benefit
determination to an appropriate named
fiduciary of the plan, and under which there
will be a full and fair review of the claim and
the adverse benefit determination.

(2) Full and fair review. Except as provided
in paragraphs (h)(3) and (h)(4) of this section,
the claims procedures of a plan will not be
deemed to provide a claimant with a
reasonable opportunity for a full and fair
review of a claim and adverse benefit
determination unless the claims procedures—

* * *

¢
:
a
a
a
:
:
:

33a

Appendix D

(ii) Provide claimants the opportunity to
submit written comments, documents,
records, and other information relating to the
claim for benefits;

(iii) Provide that a claimant shall be provided,
upon request and free of charge, reasonable
access to, and copies of, all documents,
records, and other information relevant to the
claimant’s claim for benefits. Whether a
document, record, or other information is
relevant to a claim for benefits shall be
determined by reference to paragraph (m)(8)
of this section;

(iv) Provide for a review that takes into
account all comments, documents, records,
and other information submitted by the
claimant relating to the claim, without regard
to whether such information was submitted
or considered in the initial benefit
determination.

(2) Grovp health plans. The claims
procedures of a group health plan will not be
deemed to provide a claimant with a
reasonable opportunity for a full and fair
review of a claim and adverse benefit
determination unless, in addition to complying
with the requirements of paragraphs (h)(2)(ii)
through (iv) of this section, the claims
procedures—

34a

Appendix D

(i) Provide claimants at least 180 days following
receipt of a notification of an adverse benefit
determination within which to appeal the
determination;

(ii) Provide for a review that does not afford
deference to the initial adverse benefit
determination and that is conducted by an
appropriate named fiduciary of the plan who is
neither the individual who made the adverse
benefit determination that is the subject of the
appeal, nor the subordinate of such individual;

(iii) Provide that, in deciding an appeal of any
adverse benefit determination that is based in
whole or in part on a medical judgment,
including determinations with regard to
whether a particular treatment, drug, or other
item is experimental, investigational, or not
medically necessary or appropriate, the
appropriate named fiduciary shall consult with
a health care professional who has appropriate
training and experience in the field of medicine
involved in the medical judgment;

(iv) Provide for the identification of medical or
vocational experts whose advice was obtained
on behalf of the plan in connection with a
claimant’s adverse benefit determination,
without regard to whether the advice was relied
upon in making the benefit determination;

35a

Appendix D

(v) Provide that the health care professional
engaged for purposes of a consultation under
paragraph (h)(3)(iii) of this section shall be an
individual who is neither an individual who was
consulted in connection with the adverse
benefit determination that is the subject of
the appeal, nor the subordinate of any such
individual.

* * *

(4) Plans providing disability benefits. The
claims procedures of a plan providing
disability benefits will not, with respect to
claims for such benefits, be deemed to provide
a claimant with a reasonable opportunity for
a full and fair review of a claim and adverse
benefit determination unless the claims
procedures comply with the requirements of
paragraphs (h)(2)(ii) through (iv) and (h)(3)(i)
through (v) of this section.

* * *

(i) Timing of notification of benefit
determination on review.

* + *

(5) Furnishing documents. In the case of an
adverse benefit determination on review, the
plan administrator shall provide such access

36a

Appendix D

to, and copies of, documents, records, and
other information described in paragraphs
(j)(3), (j)(4), and (j)(5) of this section as is
appropriate.

(j) (3) Astatement that the claimant is entitled
to receive, upon request and free of charge,
reasonable access to, and copies of, all
documents, records, and other information
relevant to the claimant’s claim for benefits.
Whether a document, record, or other
information is relevant to a claim for benefits
shall be determined by reference to
paragraph (m)(8) of this section;

(4) A statement describing any voluntary
appeal procedures offered by the plan and the
claimant’s right to obtain the information
about such procedures described in
paragraph (c)(3)(iv) of this section, and a
statement of the claimant’s right to bring an
action under section 502(a) of the Act; and

(5) In the case of a group health plan or a plan
providing disability benefits—

(i) If an internal rule, guideline, protocol, or
other similar criterion was relied upon in
making the adverse determination, either the
specific rule, guideline, protocol, or other

37a

Appendix D

similar criterion; or a statement that such rule,
guideline, protocol, or other similar criterion
was relied upon in making the adverse
determination and that a copy of the rule,
guideline, protocol, or other similar criterion
will be provided free of charge to the claimant
upon request;

(ii) If the adverse benefit determination is
based on a medical necessity or experimental
treatment or similar exclusion or limit, either
an explanation of the scientific or clinical
judgment for the determination, applying the
terms of the plan to the claimant’s medical
circumstances, or a statement that such
explanation will be provided free of charge
upon request; and

(iii) The following statement: “You and your
plan may have other voluntary alternative
dispute resolution options, such as mediation.
One way to find out what may be available is
to contact your local U.S. Department of
Labor Office and your State insurance

regulatory agency”.

*~ ** *

(m) Definitions. The following terms shall
have the meaning ascribed to such terms in
this paragraph (m) whenever such term is
used in this section:

* x *

38a

Appendix D

(8) A document, record, or other information
shall be considered “relevant” to a claimant’s
claim if such document, record, or other
information.

(i) Was relied upon in making the benefit
determination;

(ii) Was submitted, considered, or generated
in the course of making the benefit
determination, without regard to whether
such document, record, or other information
was relied upon in making the benefit
determination;

(iii) Demonstrates compliance with the
administrative processes and safeguards
required pursuant to paragraph (b)(5) of this
section in making the benefit determination;
or

(iv) In the case of a group health plan or a
plan providing disability benefits, constitutes
a statement of policy or guidance with respect
to the plan concerning the denied treatment
option or benefit for the claimant’s diagnosis,
without regard to whether such advice or
statement was relied upon in making the
benefit determination.

* + * *

.
)
a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0311%3A1. Public record. Not legal advice.