                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 05a0029n.06
                               Filed: January 12, 2005

                                           No. 03-2074

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

DONALD DOVER,

          Plaintiff-Appellee,

v.                                                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
METROPOLITAN LIFE INSURANCE                               COURT FOR THE EASTERN
COMPANY,                                                  DISTRICT OF MICHIGAN

          Defendant-Appellant.


                                                      /

Before:          MARTIN, COLE, and GIBBONS, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Metropolitan Life Insurance Company appeals the

partial denial of its motion for summary judgment and the denial of its motion for reconsideration

in this action under the Employee Retirement Income Security Act of 1974. In response, Donald

Dover argues that the district court erred in partially granting Metropolitan Life’s motion for

summary judgment. For the following reasons, we agree with Dover and thus REVERSE the district

court’s decision.

                                                 I.

          Plaintiff Donald Dover was an employee of International Business Machines Corporation

beginning in 1986, and was a participant in the corporation’s long term disability plan funded and

administered by Metropolitan Life Insurance Company. In short, the plan provides payment for long

term disability benefits to eligible plan participants considered “totally disabled” at the end of a
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
Page 2

fifty-two week waiting period. “Totally disabled” under the plan means “because of sickness or

injury, [the employee] cannot perform the important duties of [his] occupation or any other gainful

occupation for which [he is] reasonably fit by [his] education, training, or experience.”

       Dover stopped working at IBM on January 11, 1993, due to a psychiatric disability, and filed

an application for long term disability benefits under the plan in November 1993. One year later,

Metropolitan Life approved his application, and began issuing benefits on January 11, 1994. During

the following years, Dover’s physicians consistently reported to Metropolitan Life that he remained

disabled, suffering from psychiatric disorders, including paranoid personality with anti-social

tendencies and bipolar disorder.

       In May 1997, Dover was arrested for bad check writing and loan application fraud and was

sentenced to seventy-eight months in prison and restitution. Metropolitan Life claims that Dover’s

condition improved in prison to the degree that he could once again work. It further alleges that in

July 1998, Dover was employed at the prison’s electric shop as an “electric helper.” In June 2000,

after reviewing Dover’s prison records and job description, Dr. Ernest Gosline, an independent

psychiatric consultant retained by Metropolitan Life, determined that as of May 1, 1998, Dover was

no longer unemployable. Consequently, Metropolitan Life notified Dover that he no longer

qualified for long term disability benefits as of May 1, 1998. Dover unsuccessfully appealed that

determination in January 2001. In May 2001, Dover was released from prison. The following

month, Dover requested an additional appeal, citing letters from psychiatrists opining that Dover was

unable to work. This appeal was also denied by Metropolitan Life in light of Dover’s alleged ability

to work.
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
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       In August 2002, Dover filed suit in Michigan state court, seeking continuation of long term

disability benefits under the Metropolitan Life plan. Metropolitan Life removed the case to the

District Court for the Eastern District of Michigan, which, on June 5, 2003, granted Metropolitan

Life’s summary judgment motion in part, and Dover’s summary judgment motion in part. In short,

the district court held that Metropolitan Life’s determination that Dover was not eligible to receive

long term disability benefits during the latter part of his incarceration, from May 1, 1998 until May

29, 2001, was neither arbitrary nor capricious given Dover’s alleged ability to work. Thus, the court

upheld Metropolitan Life’s denial of benefits during that time period. The court, however, found

that Metropolitan Life’s determination that Dover was ineligible to receive long term disability

benefits after Dover’s release from prison was not justified. Consequently, the court awarded Dover

benefits commencing on May 29, 2001, and continuing to the present day and beyond.

       On June 23, 2003, Metropolitan Life filed a motion for rehearing, claiming that Dover’s

employment had terminated on April 30, 1998, and that Dover therefore could not be awarded

disability benefits subsequent to that date. The court denied Metropolitan Life’s motion on July 29,

2003, finding that there was no evidence in the administrative record indicating that Dover was

terminated on April 30, 1998. On August 14, 2003, Metropolitan Life filed its notice of appeal of

the district court’s summary judgment and its order denying Metropolitan Life’s motion for a

rehearing.

                                                 II.

       The first issue is the proper standard of review to be applied in reviewing the plan

administrator’s benefits determination. This Court’s reviews de novo the district court’s decision
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
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as to the proper standard to apply in reviewing Metropolitan Life’s benefit determination. See

Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996).

        Actions by plan administrators under the Employee Retirement Income Security Act are

reviewed under a de novo standard unless the plan gives administrators discretionary authority to

determine eligibility for benefits, in which case the “arbitrary and capricious” standard applies.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The district court found sufficient

discretionary authority to invoke “arbitrary and capricious” review, relying on language in the

relevant plan requiring applicants to present proof of disability that is “satisfactory to Metropolitan.”

Despite Dover’s claim on appeal that the district court erred by applying an arbitrary and capricious

standard of review, we hold that the district court’s judgment was proper in light of the discretionary

authority given the plan administrator. See, e.g., Yeager, 88 F.3d at 380-81 (finding language

requiring claimant to submit “satisfactory proof of Total Disability to us” sufficient to invoke

arbitrary and capricious standard of review). Thus, this Court reviews the district court's judgment

to determine whether the insurance company's decision to deny benefits was arbitrary and

capricious. Under this standard, we uphold a benefit determination if it is “rational in light of the

plan's provisions.” Id. at 381 (internal quotation marks omitted).

        The district court also found that it should more closely scrutinize Metropolitan Life’s denial

of benefits to Dover because of a conflict of interest; namely, the insurer and plan administrator in

this case are the same party. This was also a proper determination. See Killian v. Healthsource

Provident Adm’rs, Inc., 152 F.3d 514, 521 (6th Cir. 1998). Therefore, despite the deferential nature

of the arbitrary and capricious standard of review, this Court considers the conflict of interest a
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Dover v. Metropolitan Life Ins. Co.
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factor in determining whether Metropolitan Life’s decision to deny benefits was arbitrary and

capricious.

                                                 III.

       We now consider whether Metropolitan Life’s decision to deny benefits beginning on May

1, 1998, was “arbitrary and capricious.” Here, the district court held that Metropolitan Life’s

decision was not “arbitrary and capricious” because Dover was employed part-time while

incarcerated and was thus ineligible for benefits. On appeal, Dover refutes this contention, pointing

out that while Dover spent some time as an electrical helper on “standby,” he mainly cleaned

bathrooms, which only required about two and one-half hours of his time five days per week. This,

according to Dover, does not constitute “gainful employment” under the plan.

       We agree that the district court erred in finding that Metropolitan Life did not abuse its

discretion in terminating Dover’s benefits as of May 1, 1998. In order for Dover to be considered

totally disabled under the Metropolitan Life plan, he must be found unable to “perform the important

duties of [his] occupation or of any other gainful occupation for which [he is] reasonably fit by [his]

education, training or experience.” Metropolitan Life found that Dover did not meet this definition

of “totally disabled” as of May 1, 1998, relying on the conclusions of Dr. Ernest Gosline, a

psychiatric consultant retained by Metropolitan Life. Dr. Gosline, apparently without examining

Dover and by merely reviewing prison documents regarding Dover’s condition and work history,

concluded that Dover was no longer unemployable:

       It is my impression that there is adequate medical documentation that this claimant
       is working within his present setting and he is employable and would be employable
       outside of the jail under his present medical and psychiatric regime. His activities
       of daily living seem unimpaired and his GAF level[,] which is not listed at any time
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
Page 6

       in the record by the evidences [sic] provided from the progress notes[,] would
       certainly indicate that he is employable at some occupation which is consistent with
       his training, background, experience and abilities.

       We have thoroughly reviewed the record in this case and conclude that Metropolitan Life’s

determination that Dover became employable as of May 1, 1998, was not rational in light of the

plan's provisions. See Yeager, 88 F.3d at 381. In our view, Dover’s limited work as an inmate

simply does not indicate that he was able to perform the duties of a gainful occupation “for which

[he was] reasonably fit by [his] education, training or experience.” While the record indicates that

Dover held several required work assignments as an inmate, all collectively fail to constitute gainful

employment.     The record suggests that during Dover’s initial incarceration at the Federal

Correctional Institution in Sandstone, Minnesota, he was assigned to be an electrical helper. This

“employment” appears to have been the basis for Metropolitan Life’s decision to terminate Dover’s

benefits. However, apart from a vague job description, there is no evidence in the record suggesting

that Dover was engaged in meaningful employment while at Sandstone. Rather, the prison’s inmate

work records indicate that Dover held this position for less than two months, from June 29 to August

26, 1998. Moreover, Dover claimed in a letter to Metropolitan Life that during this period he “did

absolutely nothing but wait in the shop all day and never worked.”

       After being transferred to the Federal Correctional Institution in Waseca, Minnesota, Dover

worked as an electrical helper in the facilities shop from August 9 to August 18, 2000. Importantly,

however, prison records indicate that “because Mr. Dover was in treatment for half days and only

available to work half days, he was not utilized on the crew.” Beginning August 18, Dover was

assigned to be an orderly in the housing unit, cleaning shower stalls for two and one-half hours per
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
Page 7

day, five days a week. We simply do not think that this type of highly structured and supervised

work in a prison, dramatically limited by Dover’s continuing treatments for his mental disability,

could rationally be considered sufficient evidence of an ability to perform the duties of gainful

employment.

       Moreover, our reading of Dover’s medical records reveals no evidence that Dover’s

condition improved to a degree that would enable him to become gainfully employed. In fact, after

his release from prison and after learning that his disability benefits had been terminated, Dover

provided Metropolitan Life with two letters, one from a psychiatrist and the other from a

psychologist, both concluding that Dover was unable to perform any gainful occupation consistent

with his training, background, experience, and abilities.

       Therefore, given the insufficiency of the evidence contained in the administrative record

suggesting that Dover was employable, we reverse the district court’s partial grant of summary

judgment for Metropolitan Life. In cases such as this, where the administrator’s review of the

medical evidence was arbitrary and capricious, the proper remedy is to grant benefits retroactively.

Williams v. Int’l Paper Co., 227 F.3d 706, 715 (6th Cir. 2000). Consequently, because we find no

genuine dispute as to any material fact, we instruct the district court to grant Dover’s original motion

for summary judgment and hold that Dover is due benefits from May 1, 1998, to the present day and

beyond.1




       1
          Having reinstated Dover’s benefits as of May 1, 1998, we need not consider whether the
district court erred in granting a resumption of benefits following Dover’s release from prison on
May 29, 2001.
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
Page 8

                                               IV.

       In sum, we conclude that Metropolitan Life acted arbitrarily and capriciously in finding that

Dover became ineligible for long term disability benefits beginning May 1, 1998. Based on the

record before us, there should have been no interruption of Dover’s disability benefits. Therefore,

we REVERSE and REMAND with instructions to the district court to grant Dover the disability

benefits due under the plan beginning May 1, 1998, including interest, and continuing until he

becomes ineligible on grounds other than those considered in this case.
No. 03-2074
Dover v. Metropolitan Life Ins. Co.
Page 9

       JULIA SMITH GIBBONS, Circuit Judge, dissenting. I respectfully dissent because I

believe that the district court’s decision that MetLife did not act arbitrarily and capriciously in

denying Dover benefits effective May 1, 1998, is not before this court. Neither Dover nor

MetLife appealed this portion of the district court’s decision. For this reason, I believe that the

majority errs in addressing MetLife’s decision to terminate Dover’s benefits as of this date and

in concluding that MetLife acted arbitrarily and capriciously when it found Dover employable

and ended his long-term disability benefits. The only issue before this court is whether the

district court should have retroactively reinstated Dover’s benefits beginning May 29, 2001. On

this issue, I would reverse the district court’s decision.

       The majority concludes that the district court erred in finding that MetLife did not act in

an arbitrary and capricious manner when it terminated Dover’s benefits as of May 1, 1998. In

my view, this issue is not properly before us. Dover never appealed nor did he file a cross-

appeal challenging this aspect of the district court’s decision. It is well-established that an issue

not raised on appeal is deemed waived. See Enertech Elec., Inc. v. Mahoning County Comm’rs,

85 F.3d 257, 259 (6th Cir. 1996). Further, a party that does not appeal or cross-appeal cannot

enlarge his own rights or diminish the rights of the adverse party. See Shelby County Health

Care Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 936 n.2

(6th Cir. 2000). In other words, a party cannot obtain more extensive relief than what the district

court ordered without filing an appeal or cross-appeal. United States v. Neal, 93 F.3d 219, 224

(6th Cir. 1996). Dover’s failure to file a cross-appeal prevents this court from considering

whether MetLife arbitrarily or capriciously denied him benefits during the time period that he
No. 03-2074
Dover v. Metropolitan Life Insurance Company

was in prison. It also prevents this court from ordering Dover’s benefits retroactively reinstated

beginning May 1, 1998, as the majority does.

       The only issue before this court is whether the district court erred in retroactively

reinstating Dover’s benefits beginning May 29, 2001. I would reverse the district court’s

decision on this issue. Whether Dover should have received benefits after his release was not

considered by MetLife and therefore should not have been considered by the district court.

Dover filed suit against MetLife based on a final administrator decision, issued June 27, 2001,

that upheld the denial of his benefits beginning May 1, 1998. MetLife’s decision to terminate

Dover’s benefits in May 1998 necessarily meant that Dover would not receive benefits after he

was released from prison in May 2001; however, this was not an independent decision on the

administrator’s part. Thus, there was no administrator decision for the district court to evaluate

under the arbitrary and capricious standard with respect to this time period. The district court

erred in ordering benefits retroactively reinstated.

       For this reason, I would reverse the decision of the district court reinstating Dover’s

benefits effective May 29, 2001. I also believe that the issue of whether the district court erred

in concluding that MetLife did not act in an arbitrary and capricious manner when it denied

Dover benefits while he was in prison is not before this court.
