                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1714
                         ___________________________

                                       Lisa Jones

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

   Aetna Life Insurance Company; The Boeing Company Employee Health and
    Welfare Benefit Plan; Employee Benefit Plans Committee of The Boeing
                        Company; The Boeing Company

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: December 13, 2016
                              Filed: May 8, 2017
                                 ____________

Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

      Lisa E. Jones submitted a claim for disability benefits. Her plan administrator
denied it. She sued under the Employee Retirement Income Security Act (ERISA)


      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
for denial of benefits and breach of fiduciary duty. The district court dismissed the
fiduciary claim as “duplicative” of the denial-of-benefits claim. It then granted
summary judgment against Jones on the denial-of-benefits claim. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

                                         I.

       Jones worked for The Boeing Company as a business and planning analyst.
She was covered by Boeing’s employee welfare benefit plan. The plan provided
short-term (up-to-26-weeks) disability benefits funded by Boeing and administered
by Aetna Life Insurance Company. It also provided long-term disability benefits
funded and administered by Aetna.

       On October 16, 2013, Jones stopped working and submitted a claim for short-
term benefits. On October 21, rheumatologist Dr. Francisco J. Garriga submitted an
“Attending Physician Statement” with a primary diagnosis of “ankylosing
spondylitis” (inflammatory arthritis primarily affecting the spine), and a secondary
diagnosis of “migraines.” Dr. Garriga first stated that Jones could not work through
November 4. On October 23, Aetna approved her claim for short-term benefits
effective October 24. Dr. Garriga then extended Jones’s unable-to-work dates many
times. Aetna extended her benefits and required updates from Dr. Garriga. On
January 30, 2014, Aetna made what would be its final extension—through February
17.

      On February 26, Dr. Garriga extended Jones’s unable-to-work date to April 28.
At Aetna’s request, he submitted a “Capabilities and Limitations” worksheet on
March 17. It was mostly blank because “no formal testing has been done – would
need PT appointment to accurately assess.” On April 11, chiropractor Dr. Brian Dent
submitted a “Capabilities and Limitations” worksheet stating that Jones was limited
to working two to four hours per day pending flare-ups.



                                         -2-
       On April 16, Aetna told Jones that her submitted information did not
sufficiently document a level of impairment preventing her from working. Aetna
requested more information. Aetna then sent Jones’s file to Dr. Kia Swan-Moore for
review. Dr. Swan-Moore reviewed the medical records and spoke to Dr. Garriga,
who said “there is no physical clinical reason [Jones] cannot work however [Jones]
continues to tell him that the pain is so intense she could not concentrate.” Dr. Swan-
Moore also tried, unsuccessfully, to contact Dr. Mahendra Gunapooti, a pain
management specialist who Jones said had treated her. On April 24, Dr. Swan-Moore
concluded, based on the medical records, Jones could work an eight-hour day for the
period of February 17 through May 30 (with unlimited sitting, standing, and walking,
and with some limits on pushing, pulling, and carrying). On April 28, Aetna
essentially restated Dr. Swan-Moore’s conclusions and told Jones her benefits were
terminated effective February 17. The same day, Dr. Gunapooti sent records to
Aetna. Those records showed that Jones reported chronic pain, was on numerous
medications (including painkillers), and received epidurals. In light of Dr.
Gunapooti’s records, Dr. Swan-Moore reviewed her determination and tried to
contact him (but was again unsuccessful). Dr. Swan-Moore reaffirmed her
determination. Aetna reaffirmed its denial.

       On July 8, Jones submitted to a functional capacity evaluation by physical
therapist Kevin J. Wilhite. He said Jones “demonstrated lifting performance that
would place her in the Sedentary Physical Demand Category,” but he was “ultimately
Unable to Classify her ability of work over an 8 hour work day due to her inability
to complete the aerobic capacity testing” (which he did not conduct “due to safety
concerns of using a treadmill with her gait performance and use of the cane”). He
said, based on her self-reported pain, he “would not expect her to tolerate any activity
over 2 hours,” and noted that “Productive Sedentary work for an 8 hour work day
would not be expected based on this date’s performance.” Wilhite did say that Jones
“demonstrated inconsistent performance,” including “movement and muscle
recruitment patterns that were inconsistent when aware and unaware of observation.”



                                          -3-
Aetna concluded that Wilhite’s report did not support a disability finding, especially
due to Jones’s reported inconsistent performance.

       On July 17, Jones appealed the denial of benefits. She submitted Wilhite’s
report and a newer “Attending Physician Statement” from Dr. Garriga saying that her
inability to work was “ongoing” and she “cannot remain standing for over 2 hrs.”
Aetna sent Jones’s medical documentation to Dr. Daniel Gerstenblitt to see if Jones
qualified as disabled between February 18 and April 16. Dr. Gerstenblitt tried to call
Dr. Garriga seven times, leaving messages that were not returned. Dr. Gerstenblitt
stated that Jones “appears to have chronic neck and back pain,” determined that her
“functional capacity evaluation was an invalid study and self-limited,” and concluded
that “there is absolutely no reason that she is incapable for performing in at least a
sedentary position.” Aetna denied Jones’s appeal on October 8. On January 19,
2015, Jones asked Aetna to place in her file a letter from the Social Security
Administration granting her disability benefits.

       In February 2015, Jones sued Aetna, the “Boeing Employee Health and
Welfare Plan,” and the “Employee Benefit Plans Committee, the Boeing Company.”
Her amended complaint had two counts. Count I alleged that Aetna denied her short-
and long-term disability benefits in violation of 29 U.S.C. § 1132(a)(1)(B). Count II
alleged Aetna breached its fiduciary duty to her as a participant by (among other
things) failing to obtain medical records, failing to tell her where to send evidence of
disability, and using claims examiners with conflicts of interest, all in violation of
§ 1132(a)(3). The district court dismissed Count II as “duplicative” of Count I, and
denied Jones’s motion for discovery on the fiduciary-duty claim. It then granted
summary judgment to Aetna on Count I, determining Aetna did not abuse its
discretion in denying Jones’s claim. It also granted Aetna’s motion to strike
documents Jones attached to her memorandum opposing summary judgment.




                                          -4-
                                          II.

      Jones argues that the district court erred in dismissing Count II. This court
reviews the district court’s dismissal de novo. Wilson v. Ark. Dep’t of Human
Servs., 850 F.3d 368, 371 (8th Cir. 2017).

        Two of ERISA’s theories of recovery are relevant here. First, under
§ 1132(a)(1)(B), a plan participant or beneficiary may sue “to recover benefits due to
him under the terms of his plan.” Second, under § 1132(a)(3), a participant or
beneficiary may sue “to obtain other appropriate equitable relief . . . to enforce any
provisions of this subchapter”—including provisions of the subchapter that impose
liability on fiduciaries2 that breach their statutory duty to exercise a “prudent man
standard of care.” See §§ 1104(a), 1109(a); Varity Corp. v. Howe, 516 U.S. 489,
507-15 (1996).

                                          A.

       This court’s cases conflict about whether a participant or beneficiary bringing
a § 1132(a)(1)(B) claim “to recover benefits due to him under the terms of his plan”
may also bring a § 1132(a)(3) claim to obtain benefits (as “other appropriate equitable
relief” for a breach of fiduciary duty by a plan administrator).

      In Conley v. Pitney Bowes, 176 F.3d 1044 (8th Cir. 1999), a beneficiary sued
under (a)(1)(B) for benefits. He also sued under (a)(3) for breach of fiduciary duty.
He “described the alleged fiduciary violations as failure to provide him with proper


      2
        ERISA defines fiduciaries to include any person exercising “discretionary
authority or discretionary control respecting management of [a] plan” and any person
with “discretionary authority or discretionary responsibility in the administration of
[a] plan.” 29 U.S.C. § 1002(21)(A).

                                         -5-
notice of his opportunity to appeal, failure to maintain a complete administrative
record, and failure to conduct a full and impartial investigation of his condition.” Id.
at 1047. He “sought equitable relief in the form of a restoration to him of past and
future additional long-term disability benefits.” Id. The district court dismissed the
(a)(3) claim. This court affirmed, explaining that “where a plaintiff is provided
adequate relief by the right to bring a claim for benefits under § 1132(a)(1)(B), the
plaintiff does not have a cause of action to seek the same remedy under
§ 1132(a)(3)(B).” Id. (internal quotation marks omitted). It held that the beneficiary
“has a claim for benefits under § 1132(a)(1)(B) and therefore may not seek the same
benefits in the form of equitable relief under § 1132(a)(3)(B).” Id.

       More recently, in Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th
Cir. 2014), a beneficiary sued under (a)(1)(B) for benefits from a valid insurance
policy. He also sued under (a)(3), arguing that even if the policy was never validly
approved (and thus never took effect), the employer and insurer still owed benefits
because of fiduciary misconduct in failing to obtain approval. Id. at 727-28. Both
counts sought the same relief—“payment of benefits that were seemingly owed under
the Plan [in the amount of] $429,000.” See id. at 724, 728 n.12. The court refused
to dismiss the (a)(3) claim, holding the beneficiary “is allowed to assert liability under
the two subsections of 29 U.S.C. § 1132 at issue in this case.” Id. at 728.

      Silva acknowledged that earlier Eighth Circuit cases suggest that a plan
beneficiary cannot bring both (a)(1)(B) and (a)(3) claims. Id. at 726, citing Pilger v.
Sweeney, 725 F.3d 922, 927 (8th Cir. 2013). The earlier cases rely on the Supreme
Court’s 1996 Varity decision—specifically, its statement that “where Congress
elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no
need for further equitable relief, in which case such relief normally would not be
‘appropriate.’” 516 U.S. at 515. Silva determined that Varity and the earlier Eighth
Circuit cases do not “stand for the proposition that [a beneficiary] may only plead one
cause of action.” Silva, 762 F.3d at 726. Instead, Varity and the earlier Eighth

                                           -6-
Circuit cases more narrowly “prohibit duplicate recoveries when a more specific
section of the statute, such as § 1132(a)(1)(B), provides a remedy similar to what the
plaintiff seeks under the equitable catchall provision, § 1132(a)(3).” Silva, 762 F.3d
at 726.

       Silva buttressed its interpretation of Varity and the earlier Eighth Circuit cases
with “further support” from CIGNA Corp. v. Amara, 563 U.S. 421 (2011). Silva, 762
F.3d at 726. Amara reviewed an order for plan reformation under (a)(1)(B). The
Court held that (a)(1)(B) does not authorize that type of relief, but a different
statutory basis—(a)(3), which the district court had considered and rejected—does
authorize that relief. Amara, 563 U.S. at 438, 442. According to Silva, the Amara
“Court addressed the issue in terms of available relief and did not say that plaintiffs
would be barred from initially bringing a claim under the § 1132(a)(3) catchall
provision simply because they had already brought a claim under the more specific
portion of the statute, § 1132(a)(1)(B).” Silva, 762 F.3d at 727.

       Silva acknowledged that “this interpretation of Varity may seem to be at odds
with earlier Eighth Circuit cases,” but distinguished those earlier cases “based on the
stage of litigation the court was reviewing.” Silva, 762 F.3d at 727. The earlier
Eighth Circuit cases, Silva said, were all summary judgments, where “a court is better
equipped to assess the likelihood for duplicate recovery, analyze the overlap between
claims, and determine whether one claim alone will provide the plaintiff with
‘adequate relief.’” Id. Silva, on the other hand, was a motion-to-dismiss case, where
“it is difficult for a court to discern the intricacies of the plaintiff’s claims to
determine if the claims are indeed duplicative, rather than alternative, and determine
if one or both could provide adequate relief.” Id.

       Silva’s attempt to distinguish previous cases based on the stage of litigation
falters because Conley dismissed a § 1132(a)(3) claim on a motion to dismiss, not at


                                          -7-
summary judgment. Silva did not cite Conley. Neither Silva nor any other case from
this court explicitly holds that Conley is no longer good law.

       This court must resolve the intracircuit conflict between Conley’s rule—an
(a)(1)(B) claimant may not seek relief under (a)(3)—and Silva’s rule—an (a)(1)(B)
claimant may seek relief under (a)(3). Generally, in the case of an intracircuit
conflict, the earliest opinion controls. Mader v. United States, 654 F.3d 794, 800
(8th Cir. 2011) (en banc); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960
(8th Cir. 2006). However, “a panel may depart from circuit precedent based on an
intervening opinion of the Supreme Court that undermines the prior precedent.” T.L.
ex rel. Ingram, 443 F.3d at 960. The Silva panel’s departure from prior precedent
followed the intervening Amara opinion that undermined the prior panels’
interpretations of Varity. Indeed, Amara implicitly determined that seeking relief
under (a)(1)(B) does not preclude seeking relief under (a)(3). See Amara, 563 U.S.
at 438; Moyle v. Liberty Mut. Ret. Benefit Plan, 823 F.3d 948, 960-62 (9th Cir.
2016) (agreeing with Silva’s interpretation of Amara). Although Silva did not
recognize Conley, it did properly depart from it based on Amara. Silva controls.

                                            B.

       Aetna tries to distinguish Silva by limiting it to its facts, essentially arguing it
applies only where the (a)(3) claim asserts that a plan was never validly approved.
But Silva’s rule is broader than that: so long as two claims “assert different theories
of liability,” plan beneficiaries “may plead both.” Silva, 762 F.3d at 728 & n.12.

      Here, Jones asserts different theories of liability. Like Silva, the two counts
seek functionally identical relief—“an amount in excess of one million dollars,” the
benefits Jones says Aetna denied her. But despite the similarity of the relief, Counts
I and II allege distinct theories of liability. Count I asserts that Aetna denied her
benefits due under the plan. Count II asserts that Aetna, among other things, used

                                           -8-
claims examiners with conflicts of interest and denied short-term benefits solely to
disqualify long-term claims. Count II’s theory of liability is that Aetna used a
claims-handling process that breached its fiduciary duties, not that Aetna denied her
benefits due. True, Jones argues that this process caused her to be denied benefits she
was due. But Aetna’s alleged liability under (a)(3) flows from the process, not the
denial of benefits itself. A plan administrator is not liable under (a)(1)(B) for
administering a claims process contrary to its fiduciary obligation to carry out its
duties solely for participants and beneficiaries. Even if an administrator made a
decision with procedural irregularities that “serious[ly] breach” its duties to its
beneficiary, it is not necessarily liable under (a)(1)(B); instead, the serious breach
prompts more searching review of the denial-of-benefits claim. See Ingram v.
Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812 F.3d
628, 631 (8th Cir. 2016); Waldoch v. Medtronic, Inc., 757 F.3d 822, 830 (8th Cir.
2014) (explaining that a “serious breach of the plan trustee’s fiduciary duty to the
plan beneficiary” will either “alter the standard of review or affect our review under
the abuse-of-discretion standard”).

        Despite Aetna’s attempts to characterize the two claims as duplicative because
both allege “improper claims processing,” the two claims assert different theories of
liability. The district court erred in dismissing Jones’s Count II (a)(3) claim on that
basis. Its dismissal of Count II is reversed.3

                                         III.

      Jones contends that the district court erred in granting summary judgment on
her Count I (a)(1)(B) denial-of-benefits claim. According to her, she is entitled to


      3
       Before the district court, Jones moved for discovery to support her Count II
claim. The district court denied that motion “in light of its dismissal of Count II.”
Since this court reverses the basis for the denial, on remand the district court should
reconsider the discovery motion.

                                         -9-
both short-term and long-term disability benefits under the plan. The parties agree
that the Summary Plan Description gives Aetna discretionary authority to interpret
the plan. “When a plan grants an administrator this type of discretion, the district
court reviews the administrator’s construction of the plan terms for an abuse of
discretion.” Silva, 762 F.3d at 717 (internal quotation mark omitted). Under abuse-
of-discretion review, “[a]n administrator’s decision is upheld if it is reasonable, that
is, supported by substantial evidence”—meaning “more than a scintilla but less than
a preponderance.” Id. See also King v. Hartford Life & Accident Ins. Co., 414 F.3d
994, 998-1000 (8th Cir. 2005) (en banc); Tillery v. Hoffman Enclosures, Inc., 280
F.3d 1192, 1199 (8th Cir. 2002). If an administrator also funds the benefits it
administers—like Aetna does for Jones’s long-term benefits—the district court
“should consider that conflict as a factor” in determining whether the administrator
abused its discretion. Silva, 762 F.3d at 718. See also Whitley v. Standard Ins. Co.,
815 F.3d 1134, 1140 (8th Cir. 2016). This court reviews de novo the grant of
summary judgment, viewing the evidence most favorably to Jones. Silva, 762 F.3d
at 718.

                                          A.

        In her “Statement of the Issues,” Jones frames her challenge to the district
court’s summary judgment grant narrowly: “Whether the trial court erred in granting
summary judgment because the trial court failed to consider the administrative record
in that Aetna’s own doctor found Jones had a functional impairment in evaluating her
disability.” Taking the issue as defined by Jones, she does not show that Aetna’s
decision was unreasonable. Yes, Aetna’s reviewing doctor, Dr. Swan-Moore, found
that “functional impairment is supported” for February 17 through May 20, 2014.
But the functional impairment found by Dr. Swan-Moore was limited: “Based on an
8 hour day; sitting, standing, and walking would be unlimited. She could push, pull,
and carry no more than 10 pounds at any time. There are no restrictions to emotional
control, focus or concentration as well as cognition.” By the “disabled” definition in


                                         -10-
the Summary Plan Description, you are not disabled due to a “functional
impairment”; rather, you are disabled if an illness “prevents you from performing the
material duties of your own occupation or other appropriate work the Company
makes available.” Dr. Swan-Moore’s determination that Jones had some functional
impairment does not render Aetna’s no-disability determination unreasonable.

                                          B.

       Jones makes other arguments, none of which shows that Aetna’s denial of
benefits was unreasonable. First, she asserts that Dr. Swan-Moore never considered
she suffered from migraines. Jones is incorrect. Dr. Swan-Moore’s review noted
twice that Dr. Garriga diagnosed her as suffering from migraines. Dr. Swan-Moore
also discussed Jones’s condition with Dr. Garriga, who said “there is no physical
clinical reason [Jones] cannot work.” Aetna reasonably relied on Dr. Swan-Moore’s
review, which “accurately represent[ed] [Jones’s] medical record and adequately
address[ed] the evidence supporting her claim for disability.” Midgett v. Washington
Grp. Int’l Long Term Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009). Second,
she argues that Aetna’s Summary Plan Description (which the district court used to
determine her benefits) has two flaws: (1) it was not authenticated, and (2) there is
no way to know whether the underlying plan contradicts the Summary Plan
Description. The first premise fails because the plan was authenticated by affidavit.
Her second premise fails because courts frequently look to summary plan descriptions
in determining benefits. See generally Jobe v. Med. Life Ins. Co., 598 F.3d 478,
481-86 (8th Cir. 2010). It is true that since the summary plan description states that
the plan governs in cases of a conflict between the summary and the plan, the plan
governs if there is a conflict. See id. at 485-86. But the underlying plan matters only
if there is a conflict. Jones presents no evidence of a conflict and does not argue that
she requested discovery of the underlying plan. Third, she contends—without citing
any evidence—that Aetna denied her short-term benefits in order to avoid having to
later pay long-term benefits. Even considering this potential conflict in determining


                                         -11-
whether Aetna abused its discretion, Jones has not shown that Aetna’s determination
was unreasonable.

                                          C.

      Jones contends that the district court erred in striking evidence she submitted
to oppose summary judgment. “Determinations as to the admissibility of evidence
lie within the sound discretion of the district court, and we review those
determinations under an abuse of discretion standard, even at summary judgment.”
Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 818 (8th Cir. 2010). Jones
submitted a “Supplemental Administrative Record,” which included a letter from the
Social Security Administration granting disability benefits, a letter from Jones to
Aetna asking for inclusion of the SSA letter in the administrative record, and a letter
from Aetna acknowledging receipt. Jones sent the letter to Aetna on January 19,
2015—over three months after Aetna denied her appeal.

      When applying abuse-of-discretion review, a court reviewing a denial of
benefits should not consider information that was not before the plan administrator:
“Review of a plan administrator’s discretionary decision must be limited to the
administrative record . . . .” Ingram, 812 F.3d at 634. Since the “Supplemental
Administrative Record” materials were not before the plan administrator when it
made its discretionary determination, the district court correctly struck those
materials.

                                          D.

        In her reply brief, Jones makes additional arguments for reversal of summary
judgment. This court generally does not consider arguments raised for the first time
in a reply brief, although it may if the new arguments supplement those raised in an
initial brief. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir.


                                         -12-
2006). These arguments assert errors not raised in the initial brief. Jones offers no
reason for not raising them sooner. This court declines to consider the new
arguments. The district court’s grant of summary judgment on Count I is affirmed.

                                     *******

       The judgment of the district court is affirmed in part, reversed in part, and the
case remanded for proceedings consistent with this opinion.
                      ______________________________




                                         -13-
