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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0513%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008
- **Citation:** 554 U.S. 105

## Text

*

S

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.

ii
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

iv

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.

2

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.

3

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.)

4

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.

5

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

6

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

7

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 ... .

8

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

9

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.

10

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

11

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

12

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”

13

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;

14

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.

15

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.

16

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,

17

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

18

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.

19

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).

20

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.

21

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)).

22

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

23

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.

24

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.

-

25
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.

26

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,

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, Ohio 43215 (800) 728-1432
(614) 228-2920

Counsel for Respondent Wanda Glenn
March 7, 2007

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0513%3A03. Public record. Not legal advice.