     Case: 14-50368       Document: 00512903883        Page: 1    Date Filed: 01/15/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                      No. 14-50368                      United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
ROBERT GEORGE,                                                           January 15, 2015
                                                                          Lyle W. Cayce
                Plaintiff - Appellant                                          Clerk

v.

RELIANCE STANDARD LIFE INSURANCE COMPANY,

                Defendant - Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas


Before KING, DENNIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge.
      Appellant Robert George (“George”) appeals from the district court’s final
judgment affirming the decision of the ERISA 1 plan administrator in relevant
part. For the reasons explained below, we REVERSE and RENDER judgment
for George. We REMAND the case to the district court to determine the amount
of benefits to award to George.




      1   Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq.
    Case: 14-50368      Document: 00512903883        Page: 2    Date Filed: 01/15/2015



                                    No. 14-50368
                            FACTS AND PROCEEDINGS
       George served as a helicopter pilot in the United States Army. In 1985
George was injured in a helicopter crash, and doctors were forced to amputate
one of his legs at the knee. George retired from military service in 1987. After
retiring, George began flying helicopters for PHI, Inc. (“PHI”). PHI purchased
a long-term disability insurance policy (the “Policy”) for George from Appellee
Reliance Standard Life Insurance Co. (“RSL”). George flew for PHI for more
than twenty years. But in 2008 he began experiencing severe pain at the site
of his amputation, which prevented him from safely wearing his prosthetic
limb. As a result, he was no longer able to operate the foot controls of a
helicopter, and he was forced to retire from flying. At that time, he was earning
$75,495 per year. George filed a claim for long-term disability benefits with
RSL.
       The Policy contains two definitions of “Totally Disabled” and “Total
Disability,” which apply during different time periods. 2 During “the first 24
months for which a Monthly Benefit is payable,” these terms mean that the
insured “cannot perform the material duties of his/her Regular Occupation.”
After the first 24 months, these terms mean that the insured “cannot perform
the material duties of any occupation which provides substantially the same
earning capacity.” The Policy also contains a relevant limitation provision (the
“Exclusion Clause”). The Exclusion Clause provides that “Monthly Benefits for
Total Disability caused by or contributed to by mental or nervous disorders will
not be payable beyond an aggregate lifetime maximum duration of twenty-four
(24) months.” The Policy defines “Mental or Nervous Disorders” to include
“anxiety disorders” and “mental illness.” 3


       2We will use the terms “Totally Disabled” and “Total Disability” interchangeably.
       3We will use the term “mental disability” when we refer to the “Mental or Nervous
Disorders” identified in the Policy.
                                           2
    Case: 14-50368         Document: 00512903883          Page: 3    Date Filed: 01/15/2015



                                        No. 14-50368
      RSL denied George’s claim for long-term disability benefits in a series of
letters. RSL’s findings and conclusions, and George’s objections, can be
summarized as follows. First, RSL found that George was “capable of
sedentary exertion work with the ability to stand and stretch, with permanent
restrictions to standing, lifting, carrying or over head work,” and that George
could work as a “Protective-Signal Operator; Crew Scheduler; and Aircraft-Log
Clerk.” 4 Because George could fulfill the duties of the alternative occupations,
RSL determined that George was not Totally Disabled under the definition of
that term that applied after 24 months. George responded by arguing that
“none of the identified positions pa[id] anywhere close to the salary he was
making” when he stopped flying for PHI. As proof of his contention, George
attached printouts from the website “SimplyHired.com,” which showed that
the average salaries for the positions identified by RSL were $36,000, $40,000,
and $28,000 respectively. RSL dismissed George’s evidence because it “[could
not] ascertain if these materials were prepared by vocational expert[s],” “the
Internet papers all stem[med] from the same website, versus as deriving from
differing sites and being compared and contrasted by an expert,” and George
failed to attach “any labor market studies completed to substantiate [his]
argument.”
      Second, RSL determined that George’s “psychiatric conditions of
depression and post traumatic stress disorder (‘PTSD’) ‘contributed to’ his
overall impairment status” since his retirement in 2008. Thus RSL determined
that George’s claim for long-term disability benefits was “subject to a
Maximum Duration of Benefits of twenty-four (24) months” under the
Exclusion Clause. George contended that, “[c]onsidering only his physical
ailments and impairments, the record is clear that [he] cannot continue his


      4   We will refer to these occupations as the “alternative occupations.”
                                               3
    Case: 14-50368     Document: 00512903883       Page: 4   Date Filed: 01/15/2015



                                   No. 14-50368
usual occupation or engage in an occupation that pays substantially the same
as his usual occupation.” Accordingly, George asserted that “a mental/nervous
issue, if any, does not contribute to [his] disability.”
      George sought review of RSL’s decision in the district court under 29
U.S.C. § 1132(a)(1)(B). The parties agreed that the Plan’s language granted
RSL discretionary authority to determine eligibility and to construe the terms
of the Plan. Thus the district court reviewed RSL’s decision under the abuse of
discretion standard. The district court held that the evidence supported RSL’s
determination that George’s depression and PTSD contributed to his Total
Disability. Based on this finding, the district court held that RSL did not abuse
its discretion by determining that the Exclusion Clause limited George’s right
to benefits. The district court did not reach the question whether George was
Totally Disabled under the Policy.

                             STANDARD OF REVIEW
      On appeal from a bench trial, this court “review[s] the factual findings of
the trial court for clear error” and “conclusions of law de novo.” LeTourneau
Lifelike Orthotics & Prosthetics, Inc. v. Wal-Mart Stores, Inc., 298 F.3d 348,
350 (5th Cir. 2002). “Under de novo review, we apply the same standard to the
Plan Administrator’s decision as did the district court.” Holland v. Int’l Paper
Co. Ret. Plan, 576 F.3d 240, 246 (5th Cir. 2009). “[W]hen an administrator has
discretionary authority with respect to the decision at issue, the standard of
review should be one of abuse of discretion.” Vega v. Nat’l Life Ins. Servs., Inc.,
188 F.3d 287, 295 (5th Cir. 1999) (en banc), overruled on other grounds by
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). The parties do not dispute
that RSL had discretionary authority with respect to the benefits
determination at issue here.



                                         4
     Case: 14-50368        Document: 00512903883           Page: 5      Date Filed: 01/15/2015



                                         No. 14-50368
       An ERISA claimant bears the burden to show that the administrator
abused its discretion. See Anderson v. Cytec Indus., Inc., 619 F.3d 505, 512-13
(5th Cir. 2010). “A plan administrator abuses its discretion where the decision
is not based on evidence, even if disputable, that clearly supports the basis for
its denial.” Holland, 576 F.3d at 246 (internal quotation marks omitted).
Similarly, a decision constitutes an abuse of discretion “only if it is ‘made
without a rational connection between the known facts and the decision or
between the found facts and the decision.’” Truitt v. Unum Life Ins. Co. of Am.,
729 F.3d 497, 508 (5th Cir. 2013) (quoting Meditrust Fin. Servs. Corp. v.
Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999)).

                                         DISCUSSION
                                                I.
       We first consider whether we should decide this case on the ground that
George failed to carry the burden to show his right to benefits.
       Neither party cites a controlling opinion that holds that a claimant bears
the burden to show a right to benefits during the initial claims proceeding. 5
During oral argument, however, George’s counsel conceded that George bore
the initial burden to show a right to benefits. Thus we assume without deciding
that George bore this burden.
       Nevertheless, we hold that we are limited to considering whether the
record supports the reasons that RSL provided to George during the claims
proceeding. See Spradley v. Owens-Ill. Hourly Emps. Welfare Benefit Plan, 686
F.3d 1135, 1140 (10th Cir. 2012) (holding same); cf. Truitt, 729 F.3d at 510


       5 RSL cites Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir.
2004), to support its argument that George bears the burden of proof to show that he is
entitled to benefits. Ellis does not support that proposition. Instead, Ellis states that, in order
to successfully appeal an administrator’s denial of a claim, a claimant must do more than
show that there is substantial evidence to support his claim. The claimant must show that
substantial evidence does not support the administrator’s position. See id.
                                                5
    Case: 14-50368    Document: 00512903883     Page: 6   Date Filed: 01/15/2015



                                 No. 14-50368
(holding that our review of an administrator’s decision to deny benefits
“focus[es] on whether the record adequately supports the administrator’s
decision” (emphasis added) (quoting Vega, 188 F.3d at 298)). Allowing plan
administrators to offer new justifications for a denial after the claims process
has ended would undermine the claims system that Congress envisioned when
it drafted ERISA’s administrative review provisions. See 29 U.S.C. § 1133
(requiring administrator to give clear notice and providing for administrative
review); 29 C.F.R. § 2560.503-1(g) (same); Spradley, 686 F.3d at 1140 (noting
that Congress’s purposes, as expressed in these provisions, would be
undermined if administrators could add new rationales to support decision
after claims process ends). “A plan administrator may not treat the
administrative process as a trial run and offer a post hoc rationale in district
[or circuit] court.” Spradley, 686 F.3d at 1140-41 (internal quotation marks
omitted).
      RSL did not deny George’s claim because he failed to carry his burden.
RSL denied his claim because it determined that there was sufficient evidence
in the record to show that he was not Totally Disabled and that, even if he was,
a mental disorder contributed to this Total Disability. Because RSL denied
George’s claim on these grounds, those reasons will be the focus of our review.
      Accordingly, we decline to consider whether George carried his burden
to show a right to benefits.
                                      II.
                                      A.
      George does not dispute the administrator’s finding that he could
perform sedentary work, or that he could work in the alternative occupations.
Instead, George argues that there is no evidence in the record showing that




                                       6
     Case: 14-50368      Document: 00512903883        Page: 7     Date Filed: 01/15/2015



                                     No. 14-50368
those occupations would provide substantially the same earning capacity that
he enjoyed as a helicopter pilot. 6
       Under ERISA, an administrator abuses its discretion when there is not
“substantial evidence” in the record to “support [its] decisions, including those
to deny or to terminate benefits.” Ellis v. Liberty Life Assurance Co. of Bos.,
394 F.3d 262, 273 (5th Cir. 2004). RSL rejected George’s claim because: (1) it
determined that he was “capable of sedentary exertion work,” (2) its vocational
expert had determined that George could work as a “Protective-Signal
Operator; Crew Scheduler; and Aircraft-Log Clerk,” and (3) it had therefore
determined that George was not Totally Disabled under the Policy. We
consider whether the facts asserted by RSL provide substantial evidence for
its determination that George was not Totally Disabled.
       We hold that RSL abused its discretion when it determined that George
was not Totally Disabled. RSL fails to cite any evidence in the record that
supports its conclusion that George’s ability to perform sedentary work, and to
work in the alternative occupations, would allow George to obtain
“substantially the same earning capacity” that he obtained as a pilot. In our
independent review of the record, we have also been unable to locate any
evidence that supports RSL’s conclusion.
       To the contrary, the record suggests that RSL has attempted to ignore
the Policy’s similar income requirement. For example, RSL failed to mention
the similar income requirement when it described the nature of its inquiry into
George’s claim. RSL stated that “[t]he purpose of [its] review was to determine
if the medical data documents the presence of a physical condition that would



       6 As we explained above, after RSL pays disability benefits for 24 months, the
definition of Total Disability and Totally Disabled changes to ask whether the claimant can
“perform the material duties of any occupation which provides substantially the same
earning capacity.”
                                            7
     Case: 14-50368       Document: 00512903883          Page: 8     Date Filed: 01/15/2015



                                       No. 14-50368
limit Mr. George’s ability to perform any occupation for which he is
vocationally suited, as is required by the group policy after benefits have been
paid for twenty-four (24) months.” RSL’s refusal to consider George’s evidence
also suggests that RSL preferred to ignore the similar income requirement. In
its letter to George, RSL suggests that only a report from a vocational expert
could persuasively show that George was Totally Disabled under the Policy.
But we have never required either an administrator or a claimant to hire a
vocational expert to support its case. RSL then stated that it would continue
to rely on its own expert’s report, which was prepared by a qualified vocational
specialist. This argument is a red herring: Even if RSL’s report was prepared
by an expert, RSL failed to argue in its letter to George, and never argued
before this court, that the expert report contained any evidence that George
could earn a substantially similar salary in another occupation.
       RSL maintains that Duhon v. Texaco, Inc., 15 F.3d 1302 (5th Cir. 1994),
and Cochran v. Hartford Life & Accident Insurance Co., No. 09-cv-11752, 2010
WL 259047 (E.D. Mich. Jan. 20, 2010), show that it did not abuse its discretion.
Those cases are easily distinguishable. In Duhon, the relevant contract
provided that the claimant was not disabled if he could work in “any job.” See
Duhon, 15 F.3d at 1307. The contract did not contain a similar salary
requirement. 7 In Cochran, the contract contained a similar income
requirement, but the ERISA administrator proffered evidence that other




       7 Additionally, in Duhon, this court’s opinion turned in part on the “common—and
uncontested—truth” that “people in their sixties and seventies who have similar physical and
job limitations established by this record are employed and employable throughout the
workplace today.” Id. at 1308. We emphasized, however, that courts must consider ERISA
disputes on a case-by-case basis. Id. at 1309. Considering the facts in this case, we note that
it is neither commonly known, nor uncontested, that a person with George’s education,
experience, and a disability can earn $75,000 in a new career.
                                              8
     Case: 14-50368       Document: 00512903883         Page: 9     Date Filed: 01/15/2015



                                       No. 14-50368
occupations “met the earning requirements under the Plan.” Cochran, 2010
WL 259047, at *8.
       There is no evidence in the record that shows that George could earn a
substantially similar salary in another position. Thus there is no rational
connection between the fact that George can do sedentary work, including the
alternative occupations, and the conclusion that George could earn a
substantially similar salary in any alternative position. Accordingly, we hold
that RSL abused its discretion when it determined that George was not Totally
Disabled.
                                             B.
       The district court held that RSL did not abuse its discretion when it
determined that a mental disorder contributed to George’s Total Disability.
George argues that there is no evidence in the record to show that, absent his
mental or nervous conditions, he could earn substantially the same amount in
another occupation. RSL maintains that it did not abuse its discretion because
George failed to show that he was “physically unable to perform the duties of
any occupation.” We consider whether there is a rational connection between
the facts asserted by RSL and its decision that George’s depression and PTSD
contributed to his Total Disability. 8
       George concedes that his physical disabilities may allow him to perform
some sedentary jobs, and neither party disputes that George is no longer
physically capable of working as a helicopter pilot. Thus, the record supports
the conclusion that George was physically capable of performing at least some




       8 “Because the parties have not briefed whether [RSL’s] decision was ‘legally correct,’
but rather debate whether the benefits denial ultimately was an ‘abuse of discretion,’” we
need not decide whether RSL’s interpretation of the Policy was “legally correct.” McCorkle v.
Metro. Life Ins. Co., 757 F.3d 452, 457 n.10 (5th Cir. 2014). Instead, we decide whether RSL’s
benefits determination is arbitrary under the terms of the Policy.
                                              9
    Case: 14-50368        Document: 00512903883           Page: 10     Date Filed: 01/15/2015



                                        No. 14-50368
sedentary jobs, while there is no evidence to support the conclusion that he was
physically capable of doing anything more.
       There is evidence in the record, however, that George’s depression and
PTSD impaired his ability to hold down a job. Based on this evidence, RSL
determined that George’s mental disabilities “‘contributed to’ his overall
impairment status,” and that he was thus barred from receiving benefits by
the Exclusion Clause. We must decide whether there is substantial evidence
in the record to support RSL’s determination.
       This court has never considered the meaning of the phrase “caused by or
contributed to by” in a similar exclusion clause, but other federal circuit courts
have done so. Each of those courts has interpreted the “caused by or
contributed to by” language to exclude coverage only when the claimant’s
physical disability was insufficient to render him totally disabled. 9 In other
words, those courts have asked whether the mental disability is a but-for cause
of the total disability. See Black’s Law Dictionary 265 (10th ed. 2014) (defining
“but-for cause” as a “cause without which the event could not have occurred”).
We agree with this interpretation of the relevant language. We are further


       9  See Eastin v. Reliance Standard Life Ins. Co., No. 13-6247, 2014 WL 3397141, at *2
(6th Cir. July 10, 2014) (per curiam) (explaining that administrator did not abuse discretion
where evidence showed that claimant “was not totally disabled as the result of a purely
physical condition”); Maurer v. Reliance Standard Life Ins. Co., 500 F. App’x 626, 628 (9th
Cir. 2012) (reasoning that administrator did not abuse discretion where there was evidence
showing that “in the absence of any mental or nervous disorder, Plaintiff would be physically
capable of working”); Gunn v. Reliance Standard Life Ins. Co., 399 F. App’x 147, 153 (9th Cir.
2010) (affirming administrator’s denial of benefits because there was evidence showing that
claimant’s physical disability “alone was not disabling, and that, but for his psychiatric
mental and nervous disorders, he would be able to work”); cf. Michaels v. The Equitable Life
Assurance Soc’y of U.S. Emps., Managers, and Agents Long-Term Disability Plan, 305 F.
App’x 896, 898, 907-08 (3d Cir. 2009) (reasoning that exclusion clause, which barred coverage
if “the disability arises from or on account of . . . a mental condition,” would not apply if “the
claimant can demonstrate that his physical disability independently precludes him from
engaging in any gainful occupation”).


                                               10
    Case: 14-50368       Document: 00512903883         Page: 11     Date Filed: 01/15/2015



                                      No. 14-50368
persuaded that this interpretation is correct by the fact that RSL has itself
advocated this interpretation in past litigation. See Gunn, 399 F. App’x at 151
(explaining that RSL’s position was that “the language of the mental illness
exclusion required Gunn to show that he was totally disabled solely due to his
physical condition stemming from his multiple sclerosis, without taking into
account the disabling effects of any mental or nervous disorders”). Thus we
consider whether George’s physical disabilities were independently sufficient
to render him Totally Disabled.
         The record shows that George’s physical disabilities placed a firm ceiling
on his vocational prospects. 10 Even if George were completely healed of his
mental disabilities, he would still be limited to sedentary jobs. And as we
explained above, there is no evidence in the record that George could have
earned a salary in a sedentary job that was substantially similar to the one he
earned as a helicopter pilot. Thus there is no rational connection between the
fact that George’s mental disabilities may have impaired his ability to hold
down a sedentary job, and the conclusion that his mental disabilities caused or
contributed to his Total Disability.
         Accordingly, we hold that RSL abused its discretion when it determined
that the Exclusion Clause limited George’s right to benefits. We further hold
that the district court erred when it affirmed RSL’s determination on this
basis.

                                      CONCLUSION
         For the reasons explained, we REVERSE the district court’s judgment
for RSL; RENDER judgment for George; and REMAND the case to the district


          During the claims process, RSL repeatedly referred to an independent medical
         10

examiner’s statement that “[w]ithout psychiatric factors,” George “would be able to return to
work at a light physical demand level type assignment.” RSL appears to have treated “light
physical demand” as a synonym for “sedentary work.”
                                             11
   Case: 14-50368    Document: 00512903883     Page: 12   Date Filed: 01/15/2015



                                No. 14-50368
court to determine the amount of benefits to award to George. The court may
also consider whether George is entitled to other relief, including prejudgment
interest, attorney’s fees, and expenses. Cf. Alexander v. Hartford Life & Acc.
Ins. Co., 347 F. App’x 123, 126 (5th Cir. 2009) (per curiam) (reversing
administrator, rendering judgment for claimant, and remanding for damages
determination).




                                      12
    Case: 14-50368    Document: 00512903883      Page: 13   Date Filed: 01/15/2015



                                  No. 14-50368
KING, Circuit Judge, dissenting:
      I agree with the majority’s analysis contained in Sections I and II.A of
its opinion. However, I respectfully dissent from its judgment, as I disagree
with the majority’s conclusion in Section II.B that RSL abused its discretion
when it determined that George’s disability was “caused by or contributed to
by” a mental disorder.
      The majority concedes that “George’s depression and PTSD impaired his
ability to hold down a job.” In my view, this should end the inquiry. Based on
this impairment, it was more than reasonable for RSL to conclude that
George’s mental conditions at least contributed to his disability, thus triggering
the exclusion. The majority not only disagrees with this conclusion, but also
determines—as it must, in order to reverse the judgment of the district court—
that RSL abused its discretion in reaching it. Given that “[o]ur review of the
administrator’s decision . . . need only assure that the administrator’s decision
fall somewhere on a continuum of reasonableness—even if on the low end,”
Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir. 2009) (internal
quotation marks omitted), it is difficult to comprehend how the majority
arrived at this result.
      The majority reasons that, “[e]ven if George were completely healed of
his mental disabilities, he would still be limited to sedentary jobs,” noting that
“George’s physical disabilities placed a firm ceiling on his vocational
prospects.” I do not disagree with these points. I do disagree, however, that
these facts compel the conclusion that the mental disorder exclusion is
inapplicable. The majority relies on a “but-for cause” interpretation of the
exclusion that is supported only by dicta contained in several cases outside of




                                       13
    Case: 14-50368        Document: 00512903883          Page: 14      Date Filed: 01/15/2015



                                        No. 14-50368
this circuit. 1 Under the construction adopted by the majority, where physical
symptoms independently render a person disabled, a mental disorder—no
matter its severity—can never cause or contribute to that person’s disability. 2
This “but-for cause” test appears to be at odds with the plain language of the
exclusion, which applies where the disability is “caused by or contributed to by”
a mental disorder. (emphasis added). The majority’s reading also assumes a
certain order of operations—that we first look at the extent of the physical
symptoms before considering whether the mental condition causes or
contributes to the disability. I see nothing in the policy to support such an
analysis of what is, after all, an exclusion.
       Moreover, because—as the majority recognizes—George has not
challenged whether RSL’s interpretation was “legally correct,” we are limited
to deciding whether RSL’s decision constituted an abuse of discretion. At the
very least, it was reasonable for RSL to determine that George’s severe mental
conditions contributed to his disability, particularly in view of the fact that
George’s own doctor so opined. Cf. Morris v. Standard Ins. Co., No. CIV. 98-


       1 I say “dicta” because in each of the cases cited by the majority, the court affirmed the
insurer’s denial of benefits on the basis of the mental disorder limitation. See Eastin v.
Reliance Standard Life Ins. Co., No. 13-6247, 2014 WL 3397141, at *2 (6th Cir. July 10, 2014);
Maurer v. Reliance Standard Life Ins. Co., 500 F. App’x 626, 627–28 (9th Cir. 2012); Gunn v.
Reliance Standard Life Ins. Co., 399 F. App’x 147, 153 (9th Cir. 2010); Michaels v. The
Equitable Life Assur. Soc’y of U.S. Emps., Managers, & Agents Long-Term Disability Plan,
305 F. App’x 896, 907–08 (3d Cir. 2009) (remanding to allow insured to demonstrate extent
of physical disability). Those courts did not have the occasion to address the question at issue
here—i.e., whether a disability can be “caused or contributed to by” a mental disorder where
physical symptoms independently render the claimant totally disabled.
       2 The majority implies that RSL itself adopted this “but-for cause” construction,

quoting a portion of its brief in which it argued that George “had to prove that he was
physically unable to perform the duties of any occupation.” However, RSL alternatively
argued that “[n]otwithstanding [George’s ability to] perform[] the material duties of several
different alternative occupations, the district court did not err when it concluded that the
evidence supports [RSL’s] determination that George’s [PTSD] and depressive disorder
contribute to his total disability.” (internal quotation marks omitted).
                                              14
    Case: 14-50368    Document: 00512903883       Page: 15   Date Filed: 01/15/2015



                                  No. 14-50368
992-HU, 1999 WL 820202, at *5 (D. Or. Sept. 21, 1999) (concluding that plan
limitation for a disability “caused or contributed to by a mental disorder”
applied where the plaintiff “suffer[ed] from physical and mental disorders
which . . . affected her ability to perform the material functions of her job,”
because “[w]hether plaintiff suffered a distinct and separate physical disability
is immaterial under the [limitation’s] language”).
      Accordingly, I would hold that RSL did not abuse its discretion in
applying the mental disorder exclusion to George’s claim. It is a dreadful
result, driven by a dreadful provision in the policy.        The more serious a
claimant’s physical problems (and resulting employment problems), the more
likely he is to suffer from a “mental disorder” (e.g., depression), just at the time
when he most needs the coverage otherwise afforded by a policy like this. But
we are bound by RSL’s decision applying the exclusion, which was within its
discretion. Because I would affirm the judgment of the district court on this
basis, I respectfully dissent.




                                        15
