Opposition Brief — Metropolitan Life Ins. Co. v. Glenn

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No. 06-923

IN THE

Supreme Court of the ilnited States

METLIFE (METROPOLITAN LIFE INSURANCE COMPANY) AND

LONG TERM DISABILITY PLAN FOR ASSOCIATES OF SEARS,

ROEBUCK AND COMPANY,

Petitioners,

Vv.

WANDA GLENN,

Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

DAVID C. LEVINE STANLEY L. MYERS

Counsel of Record Law Offices of Stanley Myers

David C. Levine LLC 250 Civic Center Drive

250 Civic Center Drive Suite 100

Suite 100 Columbus, OH 43215

Columbus, OH 43215 (800) 728-1432

(614) 228-2920

Counsel for Respondent Wanda Glenn

March 7, 2007

(1)

(2)

QUESTIONS PRESENTED

Whether an ERISA plan fiduciary’s refusal to

consider a Social Security Administration (SSA)

decision finding a beneficiary “disabled” should be

considered as a factor in the judicial review of a

termination of benefits, when the fiduciary

encouraged, assisted, and retained counsel for the

beneficiary in the SSA proceedings for its own

financial gain.

Whether an ERISA plan fiduciary that funds

benefits, makes benefits determinations, and

encourages and assists a beneficiary in obtaining

Social Security disability benefits for its own

financial gain, then subsequently terminates plan

benefits by arbitrarily refusing to consider reliable

evidence of the beneficiary's treating physician as

well as an SSA decision finding the beneficiary

“disabled,” acis under a “conflict of interest” that

must be weighed as a factor in the judicial review of

a termination of benefits.

TABLE OF CONTENTS

STATEMENT OF THE CASE ..........cc.cscccscscsssssessscsesseesees 1

REASONS FOR DENYING THE WRIT ...........sses000s00+e 14

I. Because Metlife Retained Counsel for

Ms. Glenn in the SSA Proceedings, No

Split of Authority is Implicated in this

Case on the Issue of Whether Metlife

was Required to Consider the SSA

RE ES SSeS RN ea ee 15

IL. Because of Metlife’s Actual Conflict of

Interest Due to its Retention of Counsel

for Ms. Glenn as well as Other

Irregularities in its Review Process, No

Split of Authority is Implicated in this

Case Regarding Metlife’s Status as a

SESE, SS 21

Ill. Metlife’s Actions Were “Arbitrary and

Capricious” Regardless of Whether it

Acted Under a “Conflict of Interest” or

Failed to Consider the SSA Decision................. 24

TEINS secicrisnceuseqssticmnnsetasinmnatiteiornmmenneinsinnmnioetis 26

ili

TABLE OF AUTHORITIES

Cases

Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955 (9th Cir. 2006) (em banc)...............cccceeeeeeeeeees 24

Black & Decker Disability Plan v. Nord, 538

iad lias daa inientiiecpanatnn passim

Block v. Pitney Bowes, Inc., 952 F.2d 1450 (D.C.

EEE EER Ieee e eee nee ee ee 17

Calvert v. Firstar Fin. Inc., 409 F.3d 286 (6th

cites icinchiiichics epee iniibiiaeadindinsadimianerepineia 19

Conley v. Pitney-Bowes, 176. F.3d 1044 (8th Cir.

Donato v. Metropolitan Life Ins. Co., 19 F.3d

I I iniiiciccnttebintttinidetinesnassneiemenneeentenion 18

Doyle v. Paul Revere Life Insurance Co., 144

Ae BIE CIE GR CIID wcrc ccrccscncessesceccersesccenees 21, 23

Hess v. Reg-Ellen Mach, 423 F.3d 653 (7th Cir.

Sree chiciaie tuiainiphatehccahed ib daiedhidiptiphtiininenieosacenpecanse 22, 23

Ladd v. ITT Corp. and Metropolitan Life

Insurance Co., 148 F.3d 753 (7th Cir.

Madden v. ITT Long Term Disability Plan, 914

F.2d 1279 (Oth Cir. 1980) ..........0ccosccrcssccceeseccscecees 18

Paese v. Hartford Life and Accident Ins. Co.,

449 F.3d 435 (2d Cir. 2006)..............cccccscsecsseresecees 17

Pagan v. NYNEX Pension Plan, 52 F.3d 438 (2d

Bh Ie Ndihitinlhliiceinlicatpnisindntitnhinatadtantctnbiiihtintapnnesmetet 21, 23

Pari-Fasano v. ITT Hartford Life & Accident

Ins. Co., 230 F.3d 415 (1st Cir. 2000)................... 17

Vega v. National Life Services, 188 F.3d 287

CGR Cie. ED) Cit BI) asc ececcccccvcccsccceccescesccseccscnes 24

Whitaker v. Hartford Life & Accident Ins. Co.,

404 F.3d 947 (6th Cir. 2005) ...............sccsssecserseeees 17

Whitney v. Empire Blue Cross & Blue Shield,

106 F.3d 475 (2d Cir. 1997)..................ecrecossssosessees 21

Statutes

EE ERMC CIE et 1

I talked 20

cic carrrnanenssncetenibiietionionsdonamalaili 20

ee a ee OPO PE 7 19, 26

Other Authorities

Restatement (Second) of Trusts § 187 cmt. d

ESL a OE a OO eT 22

]

STATEMENT OF THE CASE

This case involves an insurance company, Petitioner

Metlife, that makes benefits determinations and pays any

benefits it grants (hereinafter, a “dual-role insurer”) for

Sears, Roebuck, and Company (“Sears”) under an

employee benefit plan governed by ERISA. For its own

financial benefit, Metlife encouraged, assisted, and

retained counsel for the Respondent, Ms. Wanda Glenn,

to obtain disability benefits from the Social Security

Administration (“SSA”). Nonetheless, shortly after

Metlife received its reimbursement payment from Ms.

Glenn of the retroactive SSA benefits awarded to her,

Metlife terminated all the benefits it had been paying her.

In so doing, Metlife refused to consider, no less refute, the

SSA’s_ decision finding Ms. Glenn “disabled.”

Additionally, Metlife arbitrarily relied upon hand-picked

portions of the administrative record and ignored reliable

evidence from Ms. Glenn’s treating physician that she

was unable to work at any job.

Under this Court’s decision in Firestone Tire & Rubber

v. Bruch, 489 U.S. 101 (1989), and consistent with the law

of every circuit interpreting Firestone, Metlife’s effective

participation in the SSA proceedings and its subsequent

failure to consider the SSA decision in terminating Ms.

Glenn’s benefits constitutes: (i) a factor that must be

weighed in judicial review under Firestone; and (ii) in

concert with numerous other unjustified actions of Metlife

recounted in detail below, evidence of an actual conflict of

interest and “arbitrary and capricious” behavior,

commanding reversal of its denial of benefits

determination.

Therefore, the putative splits of authority among the

circuit courts regarding—{i) whether an ERISA fiduciary,

which does not require, assist, or encourage a beneficiary

to obtain Social Security disability benefits for its own

financial gain, must consider an SSA decision; and

(ii) whether a mere dual-role insurer, with no additional

evidence of a conflict of interest, acts under an inherent

conflict that must be considered in the judicial review of a

denial a benefits—are not implicated in this case.

Moreover, the Sixth Circuit’s holding squarely applies

this Court’s precedent. Finally, even disregarding

Metlife’s conflict of interest and its failure to consider the

SSA decision, its refusal to consider, no less refute,

reliable evidence of Ms. Glenn’s treating physician, alone

renders its actions “arbitrary and capricious.”

1. Petitioner Wanda Glenn, who is 54 years old,

joined Sears in 1986, and was ultimately promoted in

1994 to sales manager of the women’s department, where

she maintained an excellent work and earnings record.

Pet. App. 2a, 28a, 41a, 46a. Ms. Glenn was covered under

Sears’s long-term disability plan (“the plan”). Jd. at 3a,

27a.

Ms. Glenn has a long history of cardiac and related

illnesses. In the early 1980s, Ms. Glenn developed

hypertension and has been treated with anti-

hypertension drugs since at least 1985. Id. at 4a. In

1989, she underwent “sudden cardiac death” but

fortunately was resuscitated. Jd. Shortly thereafter, a

defibrillator was implanted to counteract her abnormal

heart rhythms. Jd. In the 1990s, after being diagnosed

with left ventricular dysfunction, she was hospitalized

twice. Id. In 2000, she started to experience symptoms of

prolonged chest tightness, shortness of breath,

“increasing fatigue by the end of the day,” and edema in

her legs from “prolonged standing at work.” Jd.

In March 2000, as Ms. Glenn’s ventricular dysfunction

worsened, her treating cardiologist, Dr. Rajendra C.

Patel, diagnosed her with severe dilated cardiomyopathy,

a condition causing weakness in the heart muscle, which

he considered related to her job at Sears. Jd. at 4a, 29a,

43a. Ms. Glenn undertook many attempts to improve her

condition, taking as many as seven or eight different

medications. Jd. at 5a. j§ However, her condition

deteriorated, and on April 30, 2000, Dr. Patel opined,

“From my standpoint, this patient cannot return to any

kind of job that would require any significant physical or

psychological stress.” Jd. at 3a. At the end of April, Ms.

Glenn took medical leave from Sears. Id. at 5a.

On June 20, 2000, Dr. Carl Leier, a specialist in

cardiovascular disease at the Ohio State College of

Medicine, reported upon examination that Ms. Glenn’s

cardiomyopathy resulted in cardiac dysfunction that

limited her ability to work. Jd. That same day, Ms.

Glenn submitted a disability claim under the plan. Jd. at

3a. Metlife, the claims administrator of Sears’s plan,’

approved Ms. Glenn’s claim, and after a 140-day

elimination period, she began receiving benefits directly

from Metlife. Id.

In August 2000, Ms. Glenn applied for Social Security

Benefits. Jd. at 3a. On October 10, 2000, Metlife

informed Ms. Glenn by letter that it provided her name to

a law firm, Kennedy & Associates, which specializes in

securing Social Security disability benefits. Jd. at 11a;

J.A. 31-32. In the October 10 letter, Metlife also

instructed Ms. Glenn to “contact Kennedy & Associates in

' Technically, Metlife is the “plan fiduciary” and “claims

administrator” of the plan, while Sears is the “plan administrator.”

Joint Appendix (“J.A.”) 37. In any event, Metlife both makes benefits

determinations and pays those benefits. J.A. 44. (The Joint Appendix

consists of material submitted in Ms. Glenn's action in the Sixth

Circuit.)

the near future.” J.A. 32. Finally, Metlife informed Ms.

Glenn that if she secured “a retroactive award, a

recalculation of [Metlife’s disability] benefits would be

performed,” such that she would be responsible for

reimbursing Metlife for any “overpayment.” Id. Metlife

failed to notify Ms. Glenn that any future benefits would

also be recalculated, subject to a 100% offset from any

benefits received by her from the SSA. Id.;

Administrative Record (“A.R.”) 16-17.2 In December

2000, Kennedy & Associates informed Metlife that Ms.

Glenn had retained its services, and it requested all of

Ms. Glenn’s records in Metlife’s files. J.A. 354. Later

that month, Metlife forwarded the records. Id. at 338-39,

356.

In the meantime, Ms. Glenn underwent further

examinations. Pet. App. 5a. In November 2000, Dr. Patel

informed Metlife that Ms. Glenn was completely disabled

from performing any occupation and that he did not

expect her to be able to return to work. Id. Nearly one

year after Ms. Glenn stopped working, in March 2001, Dr.

Patel reported “some improvement in her LV [left

ventricular] function.” Jd. Yet, Dr. Patel noted that she

“still gets fatigued out and short of breath, particularly if

she is under any kind of page psychologic stress.”

Id. On August 3, 2001, Dr. Patel indicated that Ms.

Glenn looked clinically wat but he was concerned about

increasing general fatigue. Id. at 44a.

Nearly two years after stopping work, on March 13,

2002, Dr. Patel indicated on a Metlife form that Ms.

Glenn could now, in a day, sit for eight hours, stand for

four hours, and walk for two hours. Jd. at 5a, 29a.

Importantly, Dr. Patel also checked a “yes” box on the

form stating that the insured is “able to work in a

? The Administrative Record consists of material submitted by the

parties in the district court proceedings.

sedentary physical exertion level occupation.” Id. at 5a.

Although the form was intended to assess Ms. Glenn’s

capacity to return to work full-time, Dr. Patel signed the

form without indicating whether he was releasing Ms.

Glenn to return to work or if any restrictions applied. Jd.

at 5a-6a.

The same day, March 13, 2002, an administrative law

judge (“ALJ”) held a hearing to determine whether Ms.

Glenn was “disabled” under the Social Security Act. Id.

at 4la. Ms. Glenn was represented by Valerie Barich, an

attorney from Kennedy & Associates. Jd. On, April 22,

2002, the ALJ issued a decision finding that Ms. Glenn

was disabled as of April 30, 2000. Jd. at 41a, 49a. In so

doing, the ALJ relied on evidence submitted by Metlife

via Kennedy & Associates to the SSA, additional medical

records of Ms. Glenn’s, plus the assessments of Dr.

Snider, a Board-certified internist, and Dr. Klein, a

vocational expert, both hired by the SSA. Id. at 44a, 46a.

Dr. Snider testified that Ms. Glenn had a history of

sudden death syndrome, complex dysrhythmias, dilated

cardiomyopathy, and ventricular dysfunction resulting in

“significant functional loss.” He concluded that Ms. Glenn

“is limited to [a] low stress work environment.” Id. at

44a-45a. Dr. Klein testified that Ms. Glenn’s limited

“functional capacity” and “vocational profile” precluded

“the performance of full-time competitive employment.”

Id. at 47a. The ALJ ordered the retroactive payment of

benefits from October 2000, plus the payment of benefits

going forward. Jd. at 3a, 49a.

Under Metlife’s plan, to receive disability payments

for the first 24 months, Ms. Glenn had to be “completely

and continuously unable to perform each of the material

duties of [her] regular job.” Pet. App. 3a, 25a (emphasis

added). In order to continue receiving payments after the

first 24 months, Ms. Glenn had to be “completely and

continuously unable to perform the duties of any gainful

work or service for which [she is] reasonably qualified.”

Id. (emphasis added). A few months before the initial 24-

month period was to expire, on May 20, 2002, Metlife sent

Ms. Glenn a letter informing her that in order to continue

receiving her benefits, she would need to demonstrate

that she met this changed definition of disability. Jd. at

3a-4a. The letter further noted that Metlife would review

“(Ms. Glenn]’s vocational information, medical

information and [her] specific restrictions and limitations

that are supported by objective medical evidence.” Id. at

4a.

On June 18, 2002, Kennedy & Associates sent Metlife

a letter detailing the breakdown of Ms. Glenn’s $17,738

award of retroactive disability benefits from the Social

Security Administration. J.A. 320. Under the plan, Ms.

Glenn was obligated to reimburse Metlife for the full

amount of past due benefits. A.R. 9; 17. Despite this

obligation, Metlife allowed $4,434.50 of Ms. Glenn’s past-

due benefits to be used to pay for her legal fees. A.R. 73-

74; JA. 320-21. Later, Metlife demanded reimbursement

for overpayment of benefits for the remaining amount,

$13,303.50, which Ms. Glenn paid to Metlife in

installments. Pet. App. 4a, lla; AR. 42, 60, 61, 70-74.

Additionally, on-going amounts owed to Ms. Glenn by

Metlife were reduced by approximately 100% of her

continuing SSA benefits. A.R. 40-41; J.A. 320. In a July

8, 2002 letter, Kennedy & Associates thanked Metlife: “As

always, we greatly appreciate the opportunity to provide

you [sic] insured with an effective means by which to

secure their [sic] Social Security benefits, and we look

forward to your future referrals.” J.A. 313.

On June 12, 2002, Dr. Patel reiterated his opinion of

March 13, 2002, that Ms. Glenn was able to sit eight

hours, stand four hours, and walk two to four hours on a

Metlife form, but cautioned “No emotional stress/No

heavy exertion.” Pet. App. 6a, 30a. Just six days later, on

June 18, 2002, Dr. Patel sent a progress report to Ms.

Glenn’s internist, Dr. Choo Rhee, indicating that Ms.

Glenn “was back in our office earlier than expected,”

complaining of fatigue, “shortness of breath on moderate

exertion,” and “significant anxiety . . . regarding the

disability and having to return to work.” Id. at 6a. Dr.

Patel concluded, “From my standpoint, again, considering

her cardiomyopathy, I do not believe she will handle any

kind of stress well at her work and she would be better off

being on disability.” Id.

Metlife hired an outside physician, Dr. Mark Moyer,

merely to review Ms. Glenn’s file, but not to examine

her—despite Metlife’s right under the plan to do so. Id. at

19a, 30a; A.R. 20, 39. Apparently ignoring Dr. Patel’s

report from June 18, 2002, concluding that Ms. Glenn was

unable to work, Dr. Moyer focused on Dr. Patel’s earlier

(and, by then, outdated) assessment from March 13, 2002,

that Ms. Glenn could perform sedentary work. Pet. App.

30a; A.R. 39. Based on this evaluation, a vocational

rehabilitation coordinator determined that Ms. Glenn

could function as an account information clerk,

attendance clerk, and classified ad clerk. Pet. App. 30a.

On July 15, 2002, Metlife informed Ms. Glenn that her

last day of benefits would be September 16, 2002. Id.

On July 26, 2002, Ms. Glenn requested that Metlife

reconsider its decision. Jd. at 3la. As support, she

submitted a July 22, 2002, letter to Metlife, in which Dr.

Patel reaffirmed his view that Ms. Glenn should not

return to work:

[Ms. Glenn] continues to have significant

difficulty in returning to even any kind of

sedentary job because any kind of psychologic

stress at work causes significant problems with

her cardiovascular condition ... .

At the present time, I do not believe Wanda

should be forced to return to any kind of even

sedentary work .... The patient basically should

be considered ‘completely disabled from her

dilated cardiomyopathy as well as history of

ventricular tachvcardia.

Id. at 6a-7a.

On August 28, 2002, Metlife denied Ms. Glenn’s

request for reconsideration, and notified her that her

long-term benefits would be terminated on September 16,

2002, based on the decision that “[t]here is no supportive

medical documentation of the exacerbation of your cardiac

condition and symptomology, due to subjective complaints

of work-related stress.” Id. at 7a. The letter concluded

that the “records submitted for review do not support

cardiovascular impairment that would prevent you from

performing full time sedentary work.” Id. Metlife relied

upon Dr. Patel’s reports from November 2001 and March

13, 2002, indicating Ms. Glenn’s improving condition and

ability to perform sedentary work. Jd. However, the

letter failed to address Dr. Patel’s report from June 18,

2002, and letter from July 22, 2002, noting that Ms.

Glenn’s improved condition was short-lived, and

concluding that she was “completely disabled” and unable

“to return to any kind of even sedentary work.” Jd. at 6a-

7a; A.R. 67-69. Metlife also failed to consider the SSA’s

then-recent decision finding Ms. Glenn “disabled.” Pet.

App. 7a, lla, A.R. 67-69.

On February 12, 2003, Ms. Glenn appealed Metlife’s

denial of continued benefits. Pet. App. 3la. Dr. Patel

sent a letter that day to Metlife stating that:

Previous reports filled out by me state that the

patient was fit for sedentary work, however based

on her clinical condition and her symptomology,

there was never a time I felt that this patient

would be able to return to full-time employment. .. .

My position is that she should be considered

completely disabled.

Id. at 7a (emphasis added). in response, Metlife hired an

outside consultant physician, Dr. Chandrakant Pujara,

not to conduct an examination of her, but merely to

review Ms. Glenn’s medical records. Jd. at 8a. Although

Dr. Pujara concluded that Ms. Glenn could not engage in

“exertional physical activity,” he focused on Dr. Patel’s

early evaluation from June 12, 2002, to conclude that che

patient seems to be a reasonable candidate to try one of

the sedentary job classes at least on a trial basis.”* Id.

On the other hand, Dr. Pujara noted that “[iJf the job:

environment entails [a] significant degree of emotional

stress, and the patient is not able to cope with that, then

certainly permanent disability can be considered.” Id.

Dr. Pujara failed to address Dr. Patel’s diagnoses from

June 18, 2002, July 22, 2002, and February 12, 2003,

concluding that Ms. Glenn was “completely disabled” and

not able to work at “any kind” of job. Id.; A.R. 85-86, 90-

91.

Despite Dr. Pujara’s inconclusive report, Metlife

issued a final denial of disability benefits on May 20,

2003. Pet. App. 8a. Like Dr. Pujara, Metlife relied upon

Dr. Patel’s report from June 12, 2002, but failed to

address his diagnoses of disability from June 18, 2002,

and July 22, 2002. Jd. Although Metlife acknowledged

Dr. Patel’s letter from February 12, 2003, it concluded

that the “documentation on file does not support a

disability that would prevent Ms. Glenn from performing

any occupation, as defined in the plan.” Jd.

* Petitioners conceded at oral argument in the Sixth Circuit that

“[Ms.} Glenn had not been offered a part-time position at Sears and

that she would have no chance of receiving benefits under the Sears

ERISA plan if she went to work for another employer on the trial basis

that Dr. Pujara suggested.” Pet. App. 18a n.2.

Having exhausted her contractual appeals with

Metlife, Ms. Glenn filed suit in federal court under

ERISA, 29 U.S.C. § 1132(a)(1)B), to recover and reinstate

the benefits owed to her. Jd. at 8a-9a. On June 8, 2005,

the districi court affirmed Metlife’s denial of benefits. In

so doing, the district court considered the Seventh

Circuit’s opinion in Ladd v. ITT Corp. and Metropolitan

Life Insurance Co., 148 F.3d 753, 755-56 (7th Cir. 1998)

(Posner, J.), which held that a plan administrator’s (in

fact, Metlife’s) decision was “arbitrary and capricious”

where:

{NJone of the physicians who examined the plaintiff

found that she was capable of working; the

insurance company encouraged and assisted the

plaintiff in applying for Social Security disability

benefits, which were granted after an administrative

law judge found that the plaintiff was totally

disabled; . . . the plaintiffs condition was worse

when the plan administrators denied her benefits

under the plan than when she was granted Social

Security benefits; [and] the doctor [conducting the

independent review for Metlife] concluded in a

perfunctory report that [the beneficiary] had

sufficient residual, functional capacities to work a

full-eight hour day at a sedentary job.

Id. at 35a (quoting Ladd, 148 F.3d at 755) (internal

quotation marks omitted). The district court quoted with

approval Judge Posner’s rationale of the “penumbra of the

doctrine of judicial estoppel” as applying in these

circumstances:

(I]f a party wins a suit on one ground, it can’t turn

around and in further litigation with the same

opponent repudiate the ground in order to win a

further victory. The doctrine is technically not

applicable here, because Metlife and ITT, the

defendants in this suit, were not parties to the

proceeding before the Social Security

Administration. Yet, they “prevailed” there in a

practical sense because the grant of social security

benefits to [the beneficiary] reduced the amount of

her claim against the employee welfare plan. If we

reflect on the purpose of the doctrine, which is to

reduce fraud in the legal process by forcing a

modicum of consistency on a repeating litigant, we

see that its spirit is applicable here. To lighten the

cost of the employee welfare plan . . . the defendants

encouraged and supported [the beneficiary's] effort

to demonstrate total disability to the Social Security

Administration, going so far as to provide her with

legal representation. ... This sequence casts

additional doubt on the adequacy of [Metlife’s and

ITT’s] evaluation of [the beneficiary’s] claim, even if

it does not provide an independent basis for rejecting

that evaluation.

Id. at 35a-36a (quoting Ladd, 148 F.3d at 756).

The district court then noted that Ladd is controlling

precedent in the Sixth Circuit by its adoption in Darland

v. Fortis Benefits Ins. Co., 317 F.3d 516, 529-30 (6th Cir.

2003). Id. at 36a. Additionally, the district court found

that like Metlife’s behavior in Ladd, in this case, “Metlife

encouraged and assisted plaintiff in obtaining [Social

Security disability benefits], and an ALJ found that

plaintiff was disabled.” Jd. Yet, the district court

distinguished Ladd on the ground that the ALJ did not

have access to Dr. Patel’s response from March 13, 2002,

checking “yes” on the Metlife form that Ms. Glenn could

perform sedentary work, because that form was filled out

the same day as the SSA hearing. Id. The district court

rejected other of Ms. Glenn’s arguments and entered

judgment in favor of Metlife. Id. at 37a-40a.

2. Ms. Glenn appealed to the Sixth Circuit, which on

September 1, 2006, reversed the judgment of the district

court and remanded with instructions to reinstate Ms.

Glenn’s disability benefits, retroactive to the date of

termination. Jd. at 1a, 25a-26a.

First, the panel determined that the district court

failed to give adequate consideration to Metlife’s refusal

to review the SSA decision. Jd. at 1la. In particular, the

panel found that:

Metlife . . . steered [Ms. Glenn] to a law firm ....

deducted the amount of [the] government benefits

from the disability payments that it was obliged to

pay and demanded a refund from Glenn in the

amount of $13,500. And, yet, in making the decision

to terminate payments under the Metlife policy, the

plan administrator gave no weight whatever to the

Social Security Administration’s determination of

total disability.

Id. The panel then held that “[i]t is obvious that both

factors are relevant in determining whether Metlife’s

decision is arbitrary and capricious,” citing Ladd. Id. at

12a-13a. The panel further held:

“[A] plan administrator’s decision denying disability

benefits where the Social Security Administration

has determined that the applicant was totally

disabled” can be considered arbitrary and capricious,

especially where “it is plainly evident that the Social

Security standard for a disability determination is

much more stringent than that required by [the

defendant’s] insurance policy.” The latter

observation . . . pertains in this case to the language

of the policy... .

Id. at 13a-14a (quoting Darland, 317 F.3d at 529-30). The

panel then rejected the district court’s reliance on Dr.

Patel’s March 13, 2002, checking of the “yes” box,

indicating that Ms. Glenn could perform “sedentary”

work, because of Dr. Patel’s later clarification that “he

had never considered his patient capable of resuming full-

time work.” Id. at 14a. Next, the panel faulted Metlife

for financially benefiting from Ms. Glenn’s “receipt of

Social Security benefits,” then failing to “givel]

appropriate weight to [the SSA] determination.” Jd. The

panel concluded that Metlife’s “failure to consider the

[SSA’s] finding of disability . . . does not render the

decision arbitrary per se, but it is obviously a significant

factor to be considered upon review.” Id. at 15a

(emphasis added).

Second, the panel described as “even more perplexing”

Metlife’s “failure to give any weight to Dr. Patel’s letters

of July 22, 2002, and February 12, 2003, in which he

clearly stated that he did not believe Glenn was capable

to work, sedentary or otherwise.” Id. at 15a. The panel

went on to recount Metlife’s selective consideration of the

evidence, particularly its reliance on physicians who

never actually examined Ms. Glenn. Jd. at 15a-18a.

Under this Court’s decision in Black & Decker Disability

Plan v. Nord, 538 U.S. 822, 834 (2003), the panel noted

that Metlife “need not accord special deference to the

opinion of a treating physician,” but “[bly the same token,

it may not arbitrarily repudiate or refuse to consider the

opinions of a treating physician.” Id. at 20a. Particularly

“critical” was Metlife’s “failure to consider evidence that

[was] offered after [the] initial denial of benefits,” because

such an omission “renders a final denial of benefits

arbitrary and capricious.” Jd. at 20a-21a.

Although the panel found that Metlife’s refusal to

consider evidence submitted by Ms. Glenn after the initial

denial of benefits was itself “arbitrary,” it concluded its

opinion by recounting numerous other factors rendering

Metlife’s decision “arbitrary and capricious.” Jd. at 25a.

These factors included: Metlife’s actual “conflict of

interest” stemming from its status as a dual-role insurer;

its “unacknowledged conflict with the determination of

disability by the [SSA]; its “selective consideration of

[Ms.] Glenn’s medical record”; its failure to provide its

“independent medical consultant” the full information

from Ms. Glenn’s treating physician; and its failure “to

factor in .. . the role that stress played in aggravating her

condition.” Jd. at 25a. The panel reversed, and the

majority remanded with instructions to reinstate Ms.

Glenn’s benefits. Jd. at 26a.

On January 2, 2007, Petitioners timely filed a petition

for certiorari. This brief in opposition followed.

REASONS FOR DENYING THE WRIT

At best, the petitioners demonstrate that there is a

split of authority among the circuits on two issues:

(i) whether a mere ERISA fiduciary, which does not

require, assist, or encourage a beneficiary to obtain SSA

benefits, must consider an SSA’s decision finding a

beneficiary “disabled” when terminating that beneficiary’s

benefits; and (ii) whether a mere dual-role insurer, which

does not categoricaily refuse to consider reliable evidence

of the beneficiary’s treating physician as well as an SSA

decision finding the beneficiary “disabled,” is subject to a

conflict of interest that must be considered in the judicial

review of a denial of benefits.

Not surprisingly, the Petitioners fail to point out the

limiting conditions of the italicized clauses in the previous

paragraph. Because these conditions are not met by the

facts here, there are no splits of authority implicated in

this case. Additionally, the Sixth Circuit’s decision is

consistent with the law of this Court.

Finally, even disregarding Metlife’s conflict of interest

and its failure to consider the SSA decision, its repeated

refusals even to consider, no less refute, reliable evidence

of Ms. Glenn’s treating physician, render its actions

“arbitrary and capricious.”

I. Because Metlife Retained Counsel for Ms.

Glenn in the SSA Proceedings, No Split of

Authority is implicated in this Case on the Issue

of Whether Metlife was Required to Consider

the SSA Decision

No split of authority regarding Metlife’s failure to

consider the SSA decision is implicated in this case,

because of Metlife’s effective participation in the SSA

proceedings. As detailed above and as found by the Sixth

Circuit, a law firm, Kennedy & Associates, was “retained

by Metlife to represent [Ms.] Glenn before the Social

Security Administration.” Pet. App. 21a. Indeed, Metlife

not only referred Ms. Glenn to Kennedy & Associates, but

freely submitted substantial evidence to Kennedy &

Associates to provide to the SSA, received reimbursement

from Ms. Glenn’s SSA benefits for “overpayment” under

the plan, and effectively paid for Ms. Glenn’s legal fees

from a portion of this reimbursement amount owed to it.

See supra pp. 6-7.

Shortly after retaining counsel for Ms. Glenn, and

taking the retroactive SSA benefits awarded to her,

Metlife terminated Ms. Glenn’s plan benefits. As the

Sixth Circuit found, despite the fact that the SSA

standard of “disability” is “much more stringent than that

required by [Metlife’s] insurance policy,” id. at 13a, and

despite evidence showing Ms. Glenn’s condition worsened

following the SSA hearing, id. at 6a, 30a, Metlife refused

to consider the SSA decision in terminating Ms. Glenn’s

benefits, id. at 11a.

Only two circuits have addressed a case with these

facts. In Ladd v. ITT Corp. and Metlife, as described

above, Judge Posner, writing for the Seventh Circuit,

adopted a “penumbra of judicial estoppel” rationale,

whereby Metlife’s effective participation in the SSA

proceedings on behalf of the beneficiary, “castfed] ...

doubt on the adequacy of [Metlife’s] evaluation of [the

beneficiary's] claim.” 148 F.3d at 756.‘ Along with other

salient facts, the Seventh Circuit ultimately found

Metlife’s decision “arbitrary and capricious.” These facts

included that “no one who examined Ladd... . believed

she was capable of working” and that Ladd’s condition

had worsened since the SSA decision. 148 F.3d at 754-

756.5

In Darland, the Sixth Circuit adopted Judge Posner’s

“penumbra” rationale, where the beneficiary applied for

SSA benefits “at [the insurer’s] insistence” in order “to

reduce the amount of monthly disability payments that it

paid [the beneficiary] under the plan.” 317 F.3d at 528-

30. The Sixth Circuit reasoned, “As in Ladd, it is totally

inconsistent for [the insurer] to request that [the

beneficiary] apply for Social Security disability benefits,

yet avail itself of that Social Security determination

regarding disability to contend, at the same time, that he

is not disabled. Though not directly applicable in this

case, the principles of judicial estoppel certainly weigh

* In so holding, the Seventh Circuit relied upon the fact that the

SSA definition of “total disability” and the plan's definition were

effectively similar. 148 F.3d at 754. The clause at issue under

Metlife’s policy in Ladd is essentially the same as the clause at issue in

this case. Id.; Pet. App. 13a.

5 Notably, the only physicians who actually examined Ms. Glenn to

determine whether she was disabled were ultimately all of the opinion

that she could not work at any job. See supra pp. 6-10. Additionally,

Dr. Patel’s diagnoses indicated that Ms. Glenn’s condition worsened

from the date of the SSA hearing. See Pet. App. 6a, 30a.

ss we,

against [the insurer] taking such inconsistent positions.”

Id.

Both Ladd and Dariland squarely fit the facts in this

case. However, none of the other decisions cited by

Petitioners to show an alleged “conflict” among the

circuits address the facts here. Pet. 17-19. In Conley v.

Pitney-Bowes, 176. F.3d 1044, 1050 (8th Cir. 1999), the

court refused to consider adopting the Ladd rule,

precisely because “[t}he doctors who examined [the

beneficiary] were not unanimous, and the defendants did

not help make his case to the Social Security

Administration.” Similarly, in Whitaker v. Hartford Life

& Accident Ins. Co., 404 F.3d 947 (6th Cir. 2005), in

rejecting the claimant’s argument that, under Darland,

an administrator must in all cases “explicitly distinguish

a favorable SSA determination when denying plan

disability benefits,” the court noted Darland was a

“unique situation . . . where it would be inconsistent for a

plan administrator to ignore the SSA’s favorable

determination, after the administrator had expressly

requested the claimant to apply for SSA benefits.” Id. at

949 (emphasis added).

The remaining cases cited by Petitioner are similarly

unavailing. See Block v. Pitney Bowes, Inc., 952 F.2d

1450, 1455-56 (D.C. Cir. 1992) (holding that an SSA

decision issued after a rejection of benefits by an ERISA

administrator would be accorded “no weight,” but

providing no indication whether the insurer encouraged

or assisted in the SSA proceedings); Pari-Fasano v. ITT

Hartford Life & Accident Ins. Co., 230 F.3d 415, 420 (1st

Cir. 2000) (holding that an SSA decision “might be

relevant to an insurer's eligibility determination,” but

providing no indication whether the insurer encouraged

or assisted in the SSA proceedings); Paese v. Hartford Life

and Accident Ins. Co., 449 F.3d 435, 442-443 (2d Cir.

2006) (similar); Donato v. Metropolitan Life Ins. Co., 19

F.3d 375, 380 (7th Cir. 1994) (holding that an insurer was

not obligated to review medical evidence in a Social

Security file that it never had before it, but providing no

indication whether the insurer encouraged or assisted in

the SSA proceedings); Madden v. ITT Long Term

Disability Plan, 914 F.2d 1279, 1285 (9th Cir. 1990)

(holding that an insurer’s failure to “consider [the

beneficiary’s] social security award was not “arbitrary and

capricious” where the medical evidence relied upon by the

SSA was out-of-date, but providing no indication whether

the insurer encouraged or assisted in the SSA

proceedings).

The soundness of Judge Posner's “penumbra”

rationale is reinforced by Black & Decker Disability Plan

v. Nord, where this Court recognized that ERISA

“require[s] ‘full and fair’ assessment of claims and clear

communication to the claimant of ‘specific reasons’ for

benefit denials.” 538 U.S. at 825 (citiag 29 U.S.C. § 1133)

(emphasis added). Although this Court noted certain

“differences between the Social Security disability

program and ERISA benefit plans,” it cautioned that

“[p]lan administrators, of course, may not arbitrarily

refuse to credit a claimant’s reliable evidence... .” 538

U.S. at 833-834 (emphasis added). Indeed, the plan

covering Ms. Glenn clearly states that Metlife “will re-

evaluate all the information” in its files upon a request for

review following a denial of claims. A.R. 23-24 (emphasis

added).

Considering the viability of Ladd and Darland

following this Court’s decision in Black & Decker, in

Calvert v. Firstar Fin. Inc., 409 F.3d 286 (6th Cir. 2005),

the Sixth Circuit held:

[The rejection of the “treating physician rule” in the

ERISA context by Black & Decker] is not to say,

however .. . that the SSA determination is

meaningless and should be entirely disregarded.

While it is true that the SSA must apply the

“treating physician rule” in its determinations, that

rule provides that deference is to be given to the

opinions of treating physicians (over those of non-

treating or reviewing physicians) where, and only

where, there is objective support for those opinions

in the record .... Hence, the SSA determination,

though certainly not binding, is far from

meaningless. As the Court said in Black & Decker, a

plan administrator may not arbitrarily disregard the

medical evidence proffered by the claimant,

including the opinions of her treating physicians.

538 U.S. at 834. Here, the SSA determination, at a

minimum, provides support for the conclusion that

an administrative agency charged with examining [a

beneficiary’s] medical records found, as it expressly

said it did, objective support for [a treating

physician’s] opinion in those records.

Id. at 294 (emphasis in original).®

Under the facts of this case and the relevant statutory

and case law, Metlife can hardly call the SSA’s decision

finding Ms. Glenn disabled “[unJ]reliable” evidence that it

can “arbitrarily refuse to credit.” Black & Decker, 538

U.S. at 833-834. To do so borders on the type of “fraud”

and “inconsistency” the Ladd approach is designed to

prevent. The arbitrariness of Metlife’s flip-flopping and

the sensibility of the Ladd rule becomes even more

poignant given that an ERISA fiduciary acts in a

* Petitioners cite Whitaker, Pet. 17 n.6, a Sixth Circuit case

decided before Calvert, which implied in dicta that Ladd is no longer —

viable after this Court’s rejection of the treating physician rule in

Black & Decker. Whitaker, 404 F.3d at 949. As noted in the text

above, Calvert implicitly (and correctly) rejected this reasoning, since

the rationale of Ladd applies regardless of the treating physician rule’s

applicability. See Ladd, 148 F.3d at 154-156. See also Darland, 317

F.3d at 528-30 (adopting the Ladd approach independent of the

treating physician rule).

relationship of “trust,” and is subject to a duty of loyalty,

29 U.S.C. § 1104(a)(1)(A), and a duty of care, id.

§ 1104(a)(1B). See generally Firestone, 489 U.S. at 110-

11, 115. Although not a named party in the SSA

proceedings, for all practical purposes, and in view of both

ERISA statutory provisions and Metlife’s plan at issue,

Metlife could not “arbitrarily refuse to credit” the SSA

decision.” As such, the Sixth Circuit’s consideration of

Metlife’s failure to do so—and merely as one non-

determinative factor in its review—was fully justified.

In sum, there is no split of authority under the facts of

this case concerning whether Metlife was required to at

least consider, no less refute, the SSA’s decision finding

Ms. Glenn disabled. Furthermore, the holdings of the

circuit courts on this issue not only remain sound law

after, but are further reinforced by, this Court’s decision

in Black & Decker.

IL. Because of Metlife’s Actua] Conflict of

Interest Due to its Retention of Counsel! for Ms.

Glenn as well as Other Irregularities in its

Review Process, No Split of Authority is

Implicated in this Case Regarding Metlife’s

Status as a Dual-Role Insurer

This Court’s decision in Firestone states in dicta, that

if a “benefit plan” subject to ERISA “gives discretion to an

administrator or fiduciary who is operating under a

conflict of interest, that conflict must be weighed as a

‘factoir) in determining whether there is an abuse of

discretion” by the administrator. 489 U.S. at 115

(quoting Restatement (Second) of Trusts § 187 cmt. d

(1959)).

Since Firestone, the courts of appeals have taken

different approaches on whether the denial of benefits by

dual-role insurers (i.e., those that both grant and pay

benefits) inherently involves a conflict to be considered in

judicial review. The majority of the circuits addressing

the issue, including the Third, Fourth, Fifth, Sixth,

Eighth, Ninth, Tenth, and Eleventh circuits, have

essentially held that a dual-role insurer is subject to an

inherent conflict to be considered in judicial review. See

Pet. 8-9 (citing cases). In contrast, the First, Second, and

Seventh Circuits have basically held that there is no

inherent conflict of a dual-role insurer that should be

considered. These circuits require an additional

evidentiary showing beyond the dual-role relationship

itself for the conflict to be considered. Mers v. Marriott

International Group Accidental Death and

Dismemberment Plan, 144 F.3d 1014, 1020-21 (7th Cir.

1998); Doyle v. Paul Revere Life Insurance Co., 144 F.3d

181, 184 (1st Cir. 1998); Whitney v. Empire Blue Cross &

Blue Shield, 106 F.3d 475, 477-78 (2d Cir. 1997) (citing

Pagan v. NYNEX Pension Plan, 52 F.3d 438, 440-44 (2d

Cir. 1995)).

Like the Petitioners’ misconstrual of the split of

authority regarding Metlife’s failure to consider the SSA

decision, no split of authority is implicated in this case on

the dual-role, status-based “conflict of interest” issue,

because there is significant additional evidence of an

actual conflict in this case. Specifically, Metlife

compromised its duty of loyalty to Ms. Glenn by its

financially motivated behavior before and after the SSA

proceedings. Before the proceedings, Metlife “retained

[counsel] to represent [her] before the Social Security

Administration,” assisted her by introducing evidence to

the SSA, and financially benefited from the vigorous

arguments of counsel in front of the SSA. See Pet. App.

4a, lla, 21a; supra pp. 6-7. Under the Ladd rationale,

Metlife was at that point nearly wedded to the arguments

Kennedy & Associates made in front of the SSA.

However, after the SSA decision issued and Metlife was

reimbursed, it refused to consider the SSA decision in

terminating Ms. Glenn’s benefits, strongly evidencing a

financial conflict of interest. As the Sixth Circuit found:

Metlife’s decision to deny long-term benefits in this

case was not the product of a principled and

deliberative reasoning process. Metlife acted under

a conflict of interest and also in unacknowledged

conflict with the determination of disability by the

Social Security Administration.

Id. at 25a.

These facts would present a sufficient basis under the

law of the First, Second, or Seventh Circuits to implicate

review of Metlife’s conflict of interest. For example, in

Hess v. Reg-Ellen Mach, 423 F.3d 653, 660 (7th Cir. 2005),

the Seventh Circuit reiterated its test that for the court to

consider a conflict, a claimant must provide “specific

evidence of actual bias that there is a significant conflict.”

In Hess, evidence showed that granting benefits “would

impact [the administrator’s] operating results,” which the

court found sufficient to consider the conflict. Jd. at 660.

In Pagan, the Second Circuit held that a conflict will be

considered where the claimant “explain[s] how such an

alleged conflict affected the reasonableness of the

Committee's decision.” 52 F.3d at 443. Similarly, in

Doyle, the First Circuit stressed that “the burden [is] on

the claimant to show that the [insurer’s] decision was

improperly motivated” by the conflict of interest. 144

F.3d at 184.

Here, there is strong evidence that Metlife’s behavior

was significantly influenced by its self-interested

financial motives. Specifically, when it was in Metlife’s

financial interest to label Ms. Glenn “disabled,” it

retained counsel and supplied evidence in order to further

her claim to SSA benefits; conversely, when it was

Metlife’s interest not to label Ms. Glenn “disabled,” it

ignored evidence in order to terminate her claim to plan

benefits. Because of the arbitrary nature of such a

reversal—including Metlife’s failure to consider, no less

refute, the SSA decision and reliable evidence from Ms.

Glenn’s treating physician—and the direct impact of

these actions on Metlife’s bottom line,*® there is both

ample “evidence of actual bias that there is a significant

conflict” and a coherent “explanation [of] how [Metlife’s]

® Because of the favorable SSA decision and the 100% offset of

plan benefits by SSA benefits, Metlife was able to reduce its monthly

payment from $1850 first to, $1025, and later to, $991. A:R. 73. If

Metlife had continued paying Ms. Glenn’s benefits until age 65,

specifically, December 11, 2017, A.R. 87, as required by the plan, A.R.

7, this reduction in payment from the SSA benefits offset would have

saved Metlife approximately $175,000. Terminating Ms. Glenn’s

remaining plan benefits saved Metlife about another $180,000. A.R. 7,

73. Although one could retort that the financial impact of terminating

benefits here is not of great magnitude, $355,000 is no paltry sum.

Moreover, such amounts add up quickly over many claimants;

presumably, it is no coincidence that Metlife exhibited similarly

conflicted behavior in Ladd.

alleged conflict affected the reasonableness” of its

decision.

Thus, this case does not depend on the split among the

circuits regarding mere status-based, “dual-role” conflicts

of interest. Moreover, it fully applies this court’s rule in

Firestone that if “an administrator . . . is operating under

a conflict of interest, that conflict must be weighed as a

‘facto[r] in determining whether there is an abuse of

discretion” by the administrator. 489 U.S. at 115.°

Ill. Metlife’s Actions Were “Arbitrary and

Capricious” Regardless of Whither it Acted

Under a “Conflict of Interest” or Failed to

Consider the SSA Decision

Irrespective of Metlife’s dual-role conflict of interest

and its failure to consider the SSA decision, the Sixth

Circuit properly held that Metlife acted in an “arbitrary

and capricious” manner by its categorical refusal to

consider reliable evidence of Ms. Glenn’s treating

physician. Thus, consideration of either question

presented is not determinative of the outcome in this

case.

® Even if there were no actual conflict of interest present in this

case, the Sixth Circuit’s approach to dual-role conflicts aligns with the

overwhelming number of judges who have addressed this issue in a

precedential context. Indeed, in the only courts deciding the issue en

banc, both adopted the majority view in unanimous or near unanimous

fashion. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th

Cir. 2006) (en banc) (13 judges holding that a mere dual-role conflict

should be considered in judicial review with two judges concurring in

the judgment on other grounds); Vega v. National Life Services, 188

F.3d 287 (5th Cir. 1999) (en banc) (holding same 16-0). As these cases

illustrate, the circuit courts have been addressing this issue en banc

and, in cases such as Abatie, conforming inconsistent case law to the

majority approach. If this Court were inclined to review this split—

which is not at issue here—prudence would advise doing so from a

circuit with the increasingly disfavored minority view.

In particular, the Sixth Circuit held that:

Even more perplexing than [Metlife’s] failure to

consider the award of Social Security benefits is the

persistent failure to give any weight to Dr. Patel’s

letters of July 22, 2002, and February 12, 2003, in

which he clearly stated that he did not believe [Ms.]

Glenn was capable of returning to work, sedentary

or otherwise. This omission stands in stark contrast

to the heavy reliance Metlife placed in its brief on

the “physical capacity assessment” form that Metlife

provided to Dr. Patel and that he filled in and signed

on March 13, 2002. ... The omission is critical,

because the failure to consider evidence that is

offered after an initial denial of benefits renders a

final denial of benefits arbitrary and capricious... .

We conclude that the plan administrator’s rejection

of Dr. Patel’s assessment, under the standard set out

in the plan, was in fact arbitrary.

Pet App. 15a-22a.

The Sixth Circuit’s holding that Metlife’s actions were

“arbitrary and capricious” independent of its refusal to

consider the SSA opinion and its dual-role conflict of

interest, correctly applies ERISA and this Court’s

jurisprudence. As noted above, in Black & Decker

Disability Plan v. Nord, this Court recognized that ERISA

“require[s] ‘full and fair’ assessment of claims... .” 538

U.S. at 825 (citing 29 U.S.C. § 1133) (emphasis added).

Additionally, this Court held that “[p]lan administrators

... may not arbitrarily refuse to credit a claimant’s

reliable evidence... .” 538 U.S. at 833-834 (emphasis

added). Finally, the plan clearly states that Metlife “will

re-evaluate all the information” in its files upon a request

for review following a denial of claims. AR. 23-24

(emphasis added). Metlife met none of these

requirements, resulting in a decision that was “arbitrary

and capricious” solely on this basis.

As such, any decision by this Court on either question

presented would have no effect on the outcome of this

case.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,