                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-1997

Mitchell v. Eastman Kodak Co
Precedential or Non-Precedential:

Docket 96-7034




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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_1997/99


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Filed May 8, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7034

GEORGE W. MITCHELL

v.

EASTMAN KODAK COMPANY
Appellant

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil Action No. 93-cv-00840)

Argued: October 24, 1996

Before: STAPLETON and NYGAARD, Circuit Judges,
MAZZONE,* District Judge

(Opinion Filed May 8, 1997)

Thomas E. Wood (Argued)
Keefer, Wood, Allen & Rahal
210 Walnut Street
P.O. Box 11963
Harrisburg, PA 17108-1963
Attorney for Appellant




_________________________________________________________________
* Hon. A. David Mazzone, United States District Judge for the District
of Massachusetts, sitting by designation.
Timothy J. O'Connell (Argued)
Turner & O'Connell
258 North Street
P.O. Box 1123
Harrisburg, PA 17108

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this case, we are asked to decide whether the denial of
a claim for benefits under a Long-Term Disability Plan
governed by the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. §§ 1001 et seq., by a Plan participant
suffering from Chronic Fatigue Syndrome ("CFS") was
arbitrary and capricious. We hold that, in the
circumstances present here, it was. We will therefore affirm
the district court's grant of summary judgment in favor of
the Plan participant.

I. Facts

George Mitchell ("Mitchell"), then an employee of
Eastman Kodak Company ("Kodak"), first began suffering
from persistent coughs, sore throats, fever, and extreme
fatigue in the fall of 1988. He consulted a family physician
and an infectious disease specialist, but neither could find
any medical explanation for his persistent fatigue and other
symptoms. On January 30, 1989, Dr. Gerald Gordon of the
Geisinger Medical Center diagnosed Mitchell with "chronic
fatiguing illness," not explained by any "clear infectious
cause." The intermittent flu-like symptoms and chronic
overwhelming fatigue persisted.

As a result of his chronic fatigue, Mitchell stopped
working in January 1989. He received short-term disability
benefits from Kodak until June 26, 1989, when his
eligibility for short-term benefits expired. Mitchell then
applied for long-term disability benefits under Kodak's
Long-Term Disability Plan (the "Plan"), an "employee welfare
benefit plan" governed by ERISA. According to the terms of
the Plan, a participant is eligible to receive long-term

                   2
disability ("LTD") benefits if he, inter alia, suffers from a
disability that renders him "totally and continuously unable
to engage in any substantial Gainful Work1 for which he is,
or becomes, reasonably qualified by education, training, or
experience." Plan § 2.06, App. at 12.2

Metropolitan Life Insurance ("MLI"), the claims
administrator under the Plan, reviewed Mitchell's medical
records and denied his claim for LTD benefits in September
1989. Mitchell sought reconsideration, and MLI affirmed
the denial of benefits. In accordance with the terms of the
Plan, Mitchell appealed MLI's decision to the Plan
Administrator at Kodak. After reviewing Mitchell's claim file,
the Administrator affirmed the denial of benefits on the
ground that Mitchell had failed to provide "objective medical
evidence that [his] condition made [him] totally and
continuously unable to engage in any substantial gainful
work for which [he was] qualified as of June 26, 1989."
Letter of January 17, 1992, App. at 24.

Mitchell then brought this ERISA action to challenge the
Administrator's decision under 29 U.S.C. § 1132(a)(1)(B),
which allows an ERISA plan participant to bring a civil
action to recover benefits due him under the terms of the
plan. Mitchell alleged that he suffered from a disability as
defined in the Plan as of June 26, 1989, and thus was and
is entitled to LTD benefits under the Plan.

Mitchell and Kodak filed cross-motions for summary
judgment. Although both parties had assumed that the
district court would review the Administrator's denial of
Mitchell's claim under an "arbitrary and capricious"
standard, the court instead conducted a de novo review
_________________________________________________________________

1. "Gainful Work is paid employment." Plan § 2.11, App. at 13.

2. The Plan also requires that a participant seeking LTD benefits (1) have
one year of continuous or adjusted service before the last day worked
before the onset of disability; (2) have not reached normal retirement
date; (3) have a disability that did not result from an act of war or
participation in an insurrection, rebellion, or riot; (4) apply for Primary
Social Security Disability Insurance Benefits; and (5) remain under the
care of a licensed physician. Plan § 4.01, App. at 16-17. There is no
dispute that Mitchell met all of these requirements when he applied for
benefits.

                    3
because the copy of the Plan submitted by the parties3
contained no language granting the Administrator
discretion to determine a Plan participant's eligibility for
benefits. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101 (1989); Luby v. Teamsters Health, Welfare and Pension
Trust Funds, 944 F.2d 1176 (3d Cir. 1991). The court found
that the evidence clearly showed that Mitchell was suffering
from CFS in June 1989, but was insufficient to
demonstrate that his CFS rendered Mitchell totally unable
to engage in any substantial gainful work at that time. The
court also concluded, however, that there was insufficient
evidence to find that Mitchell was not totally disabled by
his CFS. To resolve the issue, the court remanded the
matter to the Administrator for reconsideration after
supplementation of the record with additional information
on Mitchell's ability to engage in gainful work on June 26,
1989.

On remand, Mitchell submitted to the Administrator a
letter from his physician, Dr. Nelson Gantz, dated August
18, 1994, which explained how Mitchell's persistent CFS
symptoms rendered him unable to engage in any
substantial gainful work. After reviewing this supplemental
information "and again reviewing the entirety of the claims
administrator's file," the Administrator reaffirmed his denial
of Mitchell's claim for LTD benefits. Letter of Apr. 12, 1995,
App. at 192-93. The Administrator insisted that Dr. Gantz's
letter, which was written in the present tense, "failed to
shed any new light on Mr. Mitchell's condition as of June
26, 1989." Id. at 193. The Administrator concluded, once
again, that Mitchell "ha[d] failed to provide any objective
medical evidence that his condition made him totally and
continuously unable to engage in any substantial gainful
work for which he was qualified as of June 26, 1989." Id.

Mitchell then filed with the district court a Petition to Re-
Open Motion for Summary Judgment. Kodak, in opposition
_________________________________________________________________

3. Mitchell attached a copy of the Plan dated January 1, 1990 to his
Complaint filed May 7, 1993. In its Answer, Kodak "admit[ted] that the
copy attached to the complaint is a true and correct copy of the Plan."
Defendant's Answer ¶ 4, App. at 25-26. In fact, the Plan had been
amended effective April 14, 1991.

                    4
to the Petition, submitted 1991 Plan Amendments that
granted the Administrator "discretionary authority to
determine all questions arising in the administration,
interpretation and application of the plan" and argued that
the Amendments, which had been in effect when the
Administrator finally denied Mitchell's claim in January
1992, precluded the district court from reviewing the
Administrator's decision de novo. The district court,
although recognizing that the Plan Amendments indeed
granted the Administrator discretionary authority to
administer the Plan, again conducted a de novo review. The
court interpreted this court's decision in Luby v. Teamsters
Health, Welfare and Pension Trust Funds, 944 F.2d 1176
(3d Cir. 1991), to require de novo review of all fact-based
decisions by ERISA plan administrators. Dec. 14, 1995 Op.
at 9-11. Pursuant to its de novo review, the court granted
summary judgment for Mitchell on the ground that the
undisputed evidence demonstrated that Mitchell suffered
from CFS that rendered him totally unable to engage in any
substantial gainful work as of June 26, 1989 and that he
was therefore entitled to LTD benefits under the Plan.
Kodak appeals the grant of summary judgment, challenging
both the district court's de novo review of the
Administrator's decision and its conclusion that Mitchell
was totally disabled as of June 26, 1989.

The district court had jurisdiction over this action under
29 U.S.C. § 1132(e)(1) and 28 U.S.C. § 1331. We have
jurisdiction over the appeal from the district court's grant of
summary judgment pursuant to 28 U.S.C. § 1291. Our
review of the district court's grant of summary judgment is
plenary, and we apply the same test that the district court
should have applied in the first instance. Bixler v. Central
Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292, 1297
(3d Cir. 1993).

II. Discussion

Kodak challenges the district court's de novo review of
the Plan Administrator's decision and argues that the court
should have affirmed the Administrator's decision under
the "arbitrary and capricious" standard. Alternatively,
Kodak asserts that even under de novo review, the district

                    5
court should have affirmed the Administrator's decision.
Mitchell, on the other hand, argues that de novo review was
appropriate, and, alternatively, that even under the
"arbitrary and capricious" standard of review he is entitled
to summary judgment. We agree with Kodak that the
"arbitrary and capricious" standard is applicable here, but
we also find that the Administrator's decision should be
overturned even under that deferential standard.

A. Standard of Review

ERISA does not set out the standard of review for an
action brought under § 1132(a)(1)(B) by a participant
alleging that he has been denied benefits to which he is
entitled under a covered plan. However, in Firestone Tire &
Rubber Co. v. Bruch, the Supreme Court addressed the
question of the appropriate standard for actions challenging
"denials of benefits based on plan interpretations." 489 U.S.
101, 108 (1989). The Court held that "a denial of benefits
challenged under § 1132(a)(1)(B) is to be reviewed under a
de novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan." Id. at 115. Where the plan affords the
administrator discretionary authority, the administrator's
interpretation of the plan "will not be disturbed if
reasonable." Id. at 111.4
_________________________________________________________________

4. The Court also noted that "if a benefit plan gives discretion to an
administrator or fiduciary who 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.' " Id. (quoting Restatement (Second) of Trusts
§ 187, Comment d (1959)). No conflict of interest is present here.
Although the Plan is self-insured, the Plan assets are administered by a
trustee pursuant to a trust agreement that provides that funds "may not
be used for any purpose other than for the exclusive benefit of persons
entitled to benefits under the Plan and for reasonable expenses of
administering the Plan." Plan § 8.01. Therefore, because Kodak "incurs
no direct expense as a result of the allowance of benefits, nor does it
benefit directly from the denial or discontinuation of benefits," Abnathya
v. Hoffman-LaRoche, Inc., 2 F.3d 40, 45 n.5 (3d Cir. 1993), there is no
conflict of interest sufficient to justify heightened review of the
Administrator's decision.

                    6
In Luby v. Teamsters Health, Welfare, and Pension Trust
Funds, we held that Firestone's de novo standard of review
applies to decisions based on plan administrators' factual
determinations as well as decisions based on their
interpretations of the terms of the plan. 944 F.2d 1176,
1183-84 (3d Cir. 1991). We agreed with the Seventh Circuit
that "the Court [in Firestone] intended de novo review where
administrators were not granted discretion, regardless of
whether the denials under review were based on plan
interpretations." Id. at 1183 (quoting Petrilli v. Drechsel, 910
F.2d 1441, 1446 (7th Cir. 1990)). We were

not convinced by the rationale of ... courts [of appeals]
holding that administrator's [sic] factual
determinations should be subject to deferential review.
Plan administrators are not governmental agencies who
are frequently granted deferential review because of
their acknowledged expertise. Administrators may be
laypersons appointed under the plan, sometimes
without any legal, accounting, or other training
preparing them for their responsible positions, often
without any experience in or understanding of the
complex problems arising under ERISA, and ... little
knowledge of the rules of evidence or legal procedures
to assist them in factfinding.

Id. Thus, we concluded that, like plan administrators'
decisions based on plan interpretations, "[an] ERISA plan
administrator's fact-based determinations are to be
reviewed de novo unless the plan specifically provides that
his determinations of fact be given deference or grants the
administrator the authority to make determinations
between death benefit claimants." Id. at 1187.

The district court mistakenly relied on Luby to hold that,
although the Kodak Plan "plainly vests discretionary
authority in the plan administrator," Dec. 14, 1995 Op. at
8, de novo review of the denial of Mitchell's claim was
appropriate because the denial was "based solely on [a]
factual determination[ ]" of whether Mitchell was totally
disabled at the time he applied for LTD benefits. Id. at 9. As
we have explained, Luby did not hold that district courts
must exercise de novo review over all factual
determinations by ERISA plan administrators. Rather, it

                    7
held that de novo review of factual determinations, like plan
interpretations, is appropriate if the plan does not grant the
plan administrator discretion to make those determinations.
Thus, the appropriate standard of review here depends on
"whether the terms of this Plan grant the Administrator
discretion to act as a finder of facts" to decide whether
Mitchell was "totally disabled" by CFS on June 26, 1989,
the date as of which he applied for LTD benefits. See Luby,
944 F.2d at 1180.

Section 8.03 of the Plan provides:

In reviewing the claim of any participant, the Plan
Administrator shall have full discretionary authority to
determine all questions arising in the administration,
interpretation and application of the plan. In all such
cases, the Plan Administrator's decision shall be final
and binding upon all parties.

Giving this language its ordinary meaning, we conclude
that the broad grant of discretionary authority to the
Administrator is sufficient to preclude de novo review of
both interpretative and factual determinations made in the
course of applying the benefit provisions of the Plan to a
particular application for benefits. Because fact-based
determinations of eligibility for LTD benefits are certainly
one of the "questions arising in the administration,
interpretation and application of the plan," and the
Administrator's decisions regarding such questions are
"final and binding," the Plan clearly provides that eligibility
determinations are to be afforded deference.5
_________________________________________________________________

5. Our conclusion is consistent with our circuit jurisprudence. See, e.g.,
Nazay v. Miller, 949 F.2d 1323 (3d Cir. 1991) (applying arbitrary and
capricious standard to plan administrator's fact-based decision not to
waive penalty provision where plan provided administrator with
"discretion and authority to interpret and construe the provisions of the
Plan, to determine eligibility to participate in the Plan, ... and to decide
such questions as may arise in connection with the operation of the
Plan"); Stoetzner v. United States Steel Corp., 897 F.2d 115 (3d Cir. 1990)
(applying arbitrary and capricious standard to administrator's denial of
pension and severance benefits on basis of factual determination that
claimants were afforded comparable pension benefits after sale of plan
sponsor where plan provided that "[the administrator] shall ... decide all

                    8
Mitchell argues that the Administrator's authority to
determine questions arising in the "application" of the Plan
does not entitle his decisions to deference because it "is no
more than a vesting of authority to interpret the provisions
of the plan." Mitchell Br. at 5. We find this argument
untenable. First, § 8.03 specifically provides the
Administrator with the power of "interpretation," and if the
term "application" merely afforded that same power it would
be entirely superfluous. Second, we think that "application"
of the Plan, like judicial "application" of the law, must
encompass the resolution of factual disputes as well as the
interpretation of the governing provisions of the Plan. Thus,
we conclude that the Plan Administrator's decision to deny
Mitchell LTD benefits should be reviewed under an
arbitrary and capricious standard.

B. Denial of Benefits

Under the arbitrary and capricious standard, "the district
court may overturn a decision of the Plan administrator
only if it is `without reason, unsupported by the evidence or
erroneous as a matter of law.' " Abnathya v. Hoffman
LaRoche, Inc., 2 F.3d 40, 45 (3d Cir. 1993) (quoting Adamo
v. Anchor Hocking Corp., 720 F. Supp. 491, 500 (W.D. Pa.
1989)). "This scope of review is narrow, and`the court is
not free to substitute its own judgment for that of the
[administrator] in determining eligibility for plan benefits.' "
Abnathya, 2 F.3d at 45 (quoting Lucash v. Strick Corp., 602
F. Supp. 430, 434 (E.D. Pa. 1984)).
_________________________________________________________________

questions arising out of and relating to the administration of [the
plan].... The decisions of the [administrator] shall be final and conclusive
as to all questions of interpretation and application of [the plan] and to
all other matters arising in the administration thereof."); Scarinci v.
Ciccia, 880 F. Supp. 359 (E.D. Pa. 1995) (applying arbitrary and
capricious standard to administrator's mixed fact- and plan-
interpretation-based decision to deny short-term disability benefits under
plan that required employee to provide "satisfactory" evidence of
disability to administrator with discretionary authority "to ... determine
conclusively for all parties all questions arising in the administration of
the Plan").

                    9
1. The Plan

In determining whether the Plan Administrator's decision
to deny Mitchell LTD benefits was arbitrary and capricious,
we begin with the Plan itself, since an ERISA plan
administrator must "discharge his duties with respect to a
plan ... in accordance with the documents and instruments
governing the plan insofar as such documents and
instruments are consistent with the provisions of [ERISA]."
29 U.S.C. § 1104(a)(1)(D). Section 4.01 of the Plan provides
that in order to qualify for LTD benefits, a participant must,
inter alia, "[m]eet the definition of Disability in Section 2.06."6
Section 2.06 in turn provides:

"Disability" for the purpose of this Plan is a condition
fulfilling these requirements:

a) A Participant is totally and continuously unable
to engage in any substantial Gainful Work for which
he is, or becomes, reasonably qualified by education,
training, or experience, and

b) The disability:

 1) has lasted for a continuous period of 26 weeks
inclusive of time during which Short-Term
Disability benefits and Workers Compensation
Income Replacement benefits were paid (except
where a Participant is involuntarily terminated
from the Employer as a result of a layoff, a
divestiture, or a special separation plan), or

 2) has lasted for less than 26 weeks, but can
reasonably be expected to last for a total of at least
26 weeks, or

3) is expected to result in death.

LTD benefits under the Plan are not automatic, and a
claimant bears the burden of demonstrating that he
qualifies for benefits. See Plan §§ 4.01 and 4.02; Kodak
Employee Handbook, App. at 112. Thus, the Plan required
that Mitchell, in order to obtain LTD benefits, show that as
_________________________________________________________________

6. The other eligibility requirements are described supra, note 2.
Mitchell's satisfaction of those requirements is not in dispute.

                     10
of June 26, 1989, he was totally and continuously unable
to engage in any substantial gainful work for which he was
reasonably qualified.

2. Mitchell's Record Support

To determine whether Mitchell has carried his burden, we
look to the record as a whole. Cf. Smith v. Califano, 637
F.2d 968, 970 (3d Cir. 1981) (noting that court reviewing
denial of Social Security disability benefits "retain[s] a
responsibility to scrutinize the entire record and to reverse
or remand if the ... decision is not supported by substantial
evidence"). Under the arbitrary and capricious standard of
review, the "whole" record consists of that evidence that
was before the administrator when he made the decision
being reviewed. See Luby, 944 F.2d at 1184 n.8; Woolsey v.
Marion Laboratories, Inc., 934 F.2d 1452, 1460 (10th Cir.
1991); Voliva v. Seafarers Pension Plan, 858 F.2d 195, 196
(4th Cir. 1988). Here, because the Administrator made two
decisions--the January 17, 1992 denial that precipitated
this lawsuit and the April 12, 1995 re-affirmation of that
denial that preceded the district court's grant of summary
judgment and this appeal--there is some dispute regarding
what constitutes the "whole" record.

The January 17, 1992, letter communicating the
Administrator's initial decision to deny LTD benefits advised
Mitchell that if he had additional "objective medical
evidence that [he] was disabled within the meaning of [the
Plan] as of June 26, 1989," he should submit it and the
Administrator would "reopen [his] file." App. at 24.
Consistent with that position, Kodak does not ask us to
review and overturn the district court's order directing
reconsideration by the Administrator after an opportunity
to supplement the record. Nevertheless, Kodak asks us to
review the district court's subsequent judgment of
December 14, 1995, directing payment of benefits, on the
basis of the record as it existed before supplementation. We
decline to do so. In the absence of a successful attack on
the order requiring reconsideration, our only appropriate
course is to review the district court's December 14, 1995,
judgment based on the legally relevant record then before
it. Given our conclusion that the district court should have

                   11
asked only whether the Administrator's denial was arbitrary
and capricious, on the basis of the record before the
Administrator, this means that the relevant record on
appeal is the evidence before the Administrator at the time
of his final denial on April 12, 1995.

The undisputed evidence in his claim file as of April 12,
1995, shows that as of June 26, 1989, Mitchell's chronic
and unpredictable fatigue and loss of concentration made it
impossible for him to sustain regular paid employment.
Mitchell's medical records indicate that he began
complaining of fatigue, fever, a persistent cough, and other
flu-like symptoms in the fall of 1988. An infectious disease
specialist diagnosed Mitchell with "chronic fatiguing illness"
in January 1989, and Physician's Statements submitted in
support of Mitchell's claim in June 1989, May 1990, and
July 1990 all indicated that Mitchell suffered from chronic
fatigue. Although the doctors who completed the two earlier
Statements expressed uncertainty regarding whether
Mitchell's fatigue rendered him "totally disabled," the third
clearly stated that Mitchell was "totally disabled" from
gainful employment because of his CFS.7 In 1991, the
Social Security Administration agreed with that conclusion,
awarding Mitchell Social Security Disability benefits after
comprehensively reviewing his medical history and
concluding that "[t]he medical evidence establishes that the
claimant has severe chronic fatigue syndrome with Epstein-
Barr Virus" and that he "lacks the residual functional
_________________________________________________________________

7. Kodak contends that the July 1990 Physician's Statement is
unreliable because it is internally inconsistent, indicating that Mitchell
suffered only "No Limitation" or "Some Limitation" in performing
activities such as sitting, standing, pushing, pulling, and spoken and
written communication, but that he was nonetheless totally disabled
from any occupation. We do not find this "inconsistency" dispositive. It
seems to us to be attributable largely to the inappropriateness of the
Physician's Statement form for evaluating disability resulting from CFS.
CFS does not disable an individual afflicted with it from performing
particular, isolated activities, but rather prevents him from performing
all activities for any prolonged period of time. Thus, it is not inconsistent,
given the characteristics of CFS, for Mitchell's doctor to conclude that
Mitchell was totally unable to engage in substantial gainful activity, even
though his ability to perform isolated activities such as standing,
pushing, pulling, and communicating was only "somewhat" limited.

                     12
capacity to perform the physical exertion and nonexertional
requirements of work." App. at 136.

By 1993, Mitchell was under the care of Dr. Nelson
Gantz, a doctor familiar with CFS. On September 21, 1993,
Dr. Gantz wrote a letter to the Plan Administrator
diagnosing Mitchell's CFS and describing his symptoms:

In my opinion [ ]his illness had an acute onset and my
impression is that Mr. Mitchell has chronic fatigue
syndrome.

 The treatment for chronic fatigue syndrome is
symptomatic and the prognosis is unknown. Based on
these last two items and his symptomatology it would
make him physically incapable of increased or
sustained activities. He cannot keep a regular schedule
because of his constant fatigue and his loss of
concentration.

 Based on Mr. Mitchell's history, it is my opinion his
acute onset developed in October 1988. Since chronic
fatigue syndrome is a disease of exclusion, Mr. Mitchell
has been extensively worked up in the past and in this
office ....

App. at 165-66.

On August 18, 1994, Dr. Gantz wrote another letter that
clarified how Mitchell's symptoms of "fatigue, fevers, joint
pain, muscle pain, sore throats, markedly decreased
concentration, headaches, muscle weakness and occasional
sleep problems" disabled him from all substantial gainful
activity:

The frequency and severity of symptoms in patients
with the Chronic Fatigue Syndrome vary greatly and
can wax and wane. There is no pattern to the cycle,
and unfortunately it is difficult to say when he will
have good days or bad days.... At present, restricting
activities is the only way to prevent exacerbation of his
CFS symptoms. He is capable of only mild, intermittent
activities. His ability to sustain any activity, even for a
few hours, is unpredictable.... I feel that Mr. Mitchell is
100% disabled at this time and work for him is out of
the question.

                    13
Letter of Aug. 18, 1994, App. at 191. Dr. Gantz's letters,
taken together with the earlier records of Mitchell's
persistent CFS symptoms, support the proposition that
Mitchell began suffering acute CFS symptoms in the fall of
1988, and that his symptoms rendered--and continue to
render--him incapable of sustaining prolonged activities,
including any gainful employment. There is no evidence to
the contrary.

Kodak argues that because Mitchell's records contain no
explicit doctor's statement that "Mitchell was totally
disabled as of June 26, 1989," they fail to establish that
Mitchell was in fact "totally disabled" by CFS on June 26,
1989. Although it is true that the records lack such an
explicit statement, we conclude that that alone does not
support the Administrator's conclusion that Mitchell failed
to show total disability as of June 26, 1989. The
undisputed reports from Mitchell's treating physicians show
that he began suffering CFS symptoms well before June
1989, and Dr. Gantz's letter of August 18, 1994 clearly
explains how those symptoms rendered Mitchell totally
disabled from gainful work.

Moreover, Mitchell's treating physicians' early difficulty
diagnosing Mitchell's CFS and understanding how it
disabled him from work do not support the Administrator's
conclusion. Mitchell's CFS symptoms have remained
consistent since before June 1989 and later, undisputed
evidence from a doctor more knowledgeable about the
diagnosis and symptomatology of CFS clearly supports
Mitchell's contention that CFS has rendered him totally
unable to engage in any substantial gainful work since
January 1989. As the Tenth Circuit explained in Sisco v.
United States Dep't of Health & Human Services, in which
the patient's CFS had gone undiagnosed from 1983 to
1989,

[u]nder the facts of this case, the early examinations
cannot be considered as contradicting or rebutting
[Plaintiff 's] recent diagnosis.... [C]hronic fatigue
syndrome was not even recognized as a disease until
1988, and the first technique to diagnose it was not
published until that same year.... It is highly unlikely
that any of the physicians who examined Plaintiff prior

                    14
to the Mayo Clinic [which diagnosed her] would have
considered or even been aware of chronic fatigue
syndrome. The government has not cited to a single
physician who examined Plaintiff after the Mayo Clinic
or in light of the medical community's new
understanding of chronic fatigue syndrome who
contradicted or in any way questioned the conclusions
of the Mayo Clinic and her treating physician.

 Moreover, because chronic fatigue syndrome is
diagnosed partially through a process of elimination,
an extended medical history of "nothing-wrong"
diagnoses is not unusual for a patient who is
ultimately found to be suffering from the disease. The
Mayo Clinic and her treating physician considered
Plaintiff's entire medical history--including all the
failed attempts to diagnose--in making their
assessments. Finally, in a purely linguistic sense, an
early report that "I am unable to find the cause" does
not contradict a later report that "I have now found the
cause." The statements together demonstrate an
evolution rather than a contradiction.

10 F.3d 739, 745 (10th Cir. 1993).

Here, the doctors who examined Mitchell between 1988
and 1990 were apparently unfamiliar with CFS, see, e.g.,
Physician's Progress Notes of June 6, 1989, App. at 60
("[Mitchell] brought in some literature from CBC [sic; CDC
(Centers for Disease Control)?] on a chronic fatigue
syndrome. He may well have this, but I don't know how to
prove it."), and thus were unable to declare with confidence
that he was totally disabled by the disease. However, Dr.
Gantz's letters of September 1993 and August 1994 dispel
the confusion evidenced in the earlier medical records, and
make clear that Mitchell's CFS, though misunderstood,
clearly disabled him from all substantial gainful work as of
June 26, 1989.

3. The Administrator's Decision

According to the record before us, the Administrator
denied Mitchell's claim for LTD benefits because Mitchell
had failed to tender "objective medical evidence" that he

                    15
was unable to engage in any substantial gainful work as of
June 26, 1989.8 We hold that, in this context, it was
arbitrary and capricious for the Administrator to deny
Mitchell LTD benefits for this reason.

The Administrator's denial letters are terse, and we are
not altogether certain of their meaning. However, we find
the denial arbitrary and capricious under either of the
possible meanings we can divine. The Administrator may
have meant that Mitchell had tendered insufficient evidence
to persuade the Administrator that Mitchell experienced
chronic and unpredictable fatigue and loss of concentration
or that he experienced those symptoms to a sufficient
extent to foreclose his holding down paid employment. If
that was the Administrator's meaning, his denial of benefits
on that ground was arbitrary and capricious because the
undisputed facts of record are to the contrary. As we have
already described, the undisputed evidence from Mitchell's
physicians indicates that Mitchell has suffered severe CFS
symptoms that have precluded him from engaging in any
substantial gainful work since January 1989. Kodak has
identified no more "objective" evidence that Mitchell could
have submitted, in addition to his doctors' observations, to
support his claim that his fatigue and loss of concentration
were sufficiently severe to prevent him from engaging in
gainful work.

Because the Administrator cited a lack of "objective
medical evidence," as opposed to merely "objective
evidence," we think it more likely that the Administrator
meant that Mitchell had failed to submit clinical evidence
establishing the etiology of the chronic and unpredictable
fatigue and loss of concentration that disabled him from
_________________________________________________________________

8. See Letter of Jan. 17, 1992, App. at 24 ("The file indicates that you are
suffering from fatigue, but does not contain objective medical evidence
that your condition made you totally and continuously unable to engage
in any substantial gainful work for which you were qualified as of June
26, 1989.") (emphasis in original); Letter of Apr. 12, 1995, App. at 193
(informing Mitchell's attorney that denial of benefits was affirmed
because "you and your client have failed to provide any objective medical
evidence that his condition made him totally and continuously unable to
engage in any substantial gainful activity for which he was qualified as
of June 26, 1989.") (emphasis in original).

                    16
working. Although in some contexts it may not be arbitrary
and capricious to require clinical evidence of the etiology of
allegedly disabling symptoms in order to verify that there is
no malingering, we conclude that it was arbitrary and
capricious to require such evidence in the context of this
Plan and CFS.

The Plan requires that a claimant for LTD benefits "[m]eet
the definition of Disability," i.e. be "totally and continuously
unable to engage in any substantial Gainful Work for which
he is, or becomes, reasonably qualified" for at least 26
weeks. See Plan §§ 2.06, 4.01. Nowhere does the Plan state
that a claimant must provide clinical evidence of the
etiology of the "condition" that renders him disabled. Cf.
Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 520 (3d
Cir. 1997) (administrator's discretionary interpretation of
plan "may not controvert the plain language of the [plan]
document") (citing Gaines v. Amalgamated Ins. Fund, 753
F.2d 288, 289 (3d Cir. 1985)). All that the Plan required
was that Mitchell show that he was in fact "disabled" as of
June 26, 1989, and this he did. See supra Part II-B-2.

Moreover, it was impermissible for the Administrator to
imply an additional "clinical evidence of etiology"
requirement not specified in the Plan document in the
context of CFS. It is now widely-recognized in the medical
and legal communities that "there is no `dipstick' laboratory
test for chronic fatigue syndrome." Sisco v. United States
Dep't of Health & Human Services, 10 F.3d 739, 744 (10th
Cir. 1993). Because the disease, although universally-
recognized as a severe disability, has no known etiology,
see, e.g., Rose v. Shalala, 34 F.3d 13, 16-17 (1st Cir. 1994),
it would defeat the legitimate expectations of participants in
the Kodak Plan to require those with CFS to make a
showing of clinical evidence of such etiology as a condition
of eligibility for LTD benefits. Thus, it was arbitrary and
capricious for the Administrator to deny Mitchell benefits
because of a lack of such clinical evidence of the etiology of
his CFS.

III. Conclusion

In accordance with the foregoing, we hold that the Kodak
Plan Administrator's decision to deny Mitchell's claim for

                    17
LTD benefits was "arbitrary and capricious." We will affirm
the district court's grant of summary judgment for Mitchell.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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