     07-0364-cv
     Hobson v. Metro. Life Ins. Co.
 1
 2                                    UNITED STATES COURT OF APPEALS
 3
 4                                       FOR THE SECOND CIRCUIT
 5
 6                                          August Term 2008
 7
 8   (Argued: October 30, 2008                                 Decided: July 29, 2009)
 9
10                                        Docket No. 07-0364-cv
11
12   -----------------------------------------------------x
13
14   DEBORAH HOBSON,
15
16                      Plaintiff-Appellant,
17
18                                      -- v. --
19
20   METROPOLITAN LIFE INSURANCE COMPANY,
21
22                      Defendant-Appellee.
23
24   -----------------------------------------------------x
25
26   B e f o r e :                WALKER, B.D. PARKER, and RAGGI, Circuit Judges.
27

28            Plaintiff-Appellant Deborah Hobson appeals from an order of

29   the United States District Court for the Southern District of New

30   York (Alvin K. Hellerstein, Judge) dismissing her complaint

31   challenging the denial by her ERISA plan administrator,

32   Metropolitan Life Insurance Co., of her claim for long-term

33   disability benefits.                Because we find that the plan administrator

34   acted within its discretion in denying Plaintiff-Appellant’s

35   claim, the district court’s judgment is AFFIRMED.




                                                    1
 1                                  JASON A. NEWFIELD,(Justin C.
 2                                  Frankel, on the brief), Frankel &
 3                                  Newfield, P.C., Garden City, N.Y.,
 4                                  for Plaintiff-Appellant.
 5
 6                                  ALLAN M. MARCUS, Lester Schwab Katz
 7                                  & Dwyer, LLP, New York, N.Y., for
 8                                  Defendant-Appellee.
 9
10
11
12   JOHN M. WALKER, JR., Circuit Judge:

13        Plaintiff-Appellant Deborah Hobson (“Hobson”) is a member of

14   an employer-provided health care plan (the “Plan”) that is

15   governed by the provisions of the Employee Retirement Income

16   Security Act, 29 U.S.C. §§ 1001-1461 (“ERISA”), and for which

17   claims for benefits are administered by Defendant-Appellee

18   Metropolitan Life Insurance Co. (“MetLife”).       Hobson brings this

19   appeal from an order of the United States District Court for the

20   Southern District of New York (Alvin K. Hellerstein, Judge) dated

21   December 12, 2006, granting summary judgment to MetLife, denying

22   Hobson’s cross-motion for summary judgment, and dismissing the

23   complaint.   Hobson v. Metro. Life Ins. Co., No. 05 CV 7321, Tr.

24   at 29 (S.D.N.Y. Dec. 12, 2006).

25        Hobson alleges that MetLife’s conflict of interest as both

26   evaluator and payor of benefit claims influenced its decision to

27   deny her claim for benefits, requiring this court to review

28   MetLife’s determination de novo.       She contends that, in any

29   event, MetLife’s decision was arbitrary and capricious because it

30   was not supported by substantial evidence.       She also avers that

31   MetLife abused its discretion by not affording her a full and

32   fair review of her claim, as required by sections 404(a) and 503

                                        2
1    of ERISA, 29 U.S.C. §§ 1104, 1133.

2         Finding that Hobson failed to establish that MetLife was

3    influenced by its structural conflict of interest, we decline to

4    accord this factor any weight in our review of MetLife’s denial

5    of Hobson’s benefits claim for abuse of discretion.   Because we

6    find that substantial evidence supported MetLife’s denial of

7    Hobson’s benefits claim, and that MetLife afforded her a full and

8    fair review of her claim, we conclude that the district court

9    properly determined that MetLife acted within its discretion as

10   plan administrator in denying the claim.   We therefore affirm.

11                               BACKGROUND

12        Hobson worked for KPMG, LLP (“KPMG”) from 1998 to February

13   12, 2001 as a tax technician, a sedentary position which involved

14   sitting at a work-space and using a computer.   She challenges

15   MetLife’s denial of her claim for long-term disability (“LTD”)

16   benefits.

17   Hobson’s Health Insurance Plan

18        Under KPMG’s group health insurance policy with MetLife,

19   MetLife has the “discretionary authority” to interpret the Plan’s

20   terms and determine a claimant’s eligibility for, and entitlement

21   to, Plan benefits.   An employee is eligible for LTD benefits

22   under the Plan beginning twenty-five weeks after becoming

23   “disabled.”   The Plan considers the employee “disabled” (1) for

24   the next thirty-six months, if she cannot perform the “material

25   and substantial duties of [her] [o]wn [o]ccupation,” and (2)




                                      3
1    after this period, if she cannot perform “any job for which [she

2    is] qualified or . . . may become reasonably qualified . . . .”

3    Hobson’s Claims History

4          Initial Benefits Claim

5          After becoming disabled in February 2001, Hobson filed a

6    claim for short-term disability and LTD benefits under the Plan,

7    claiming that she was unable to work.         Hobson allegedly suffers

8    from asthma, severe tremors, migraines, depression, ulcerative

9    colitis (“colitis”), ileostomy skin problems, seizures, thyroid

10   cancer, fibromyalgia, sleep apnea, severe fatigue, heaviness in

11   her arms and legs, herniated disks in her lower back and neck,

12   arthritis, and Dercum’s disease (“Dercum’s”).           Hobson initially

13   submitted medical examination reports from three doctors.             The

14   first, rheumatologist Dr. Sandra L. Sessoms, diagnosed Hobson

15   with fibromyaglia1--a disease impairing cognitive functioning--

16   and opined that Hobson was unable to work.          The second,

17   gastroenterologist Dr. D. Keith Fernandez, diagnosed Hobson with

18   colitis, which involves acute or chronic inflammation of the

19   tissue lining the gastrointestinal system, but stated that Hobson

20   could return to work on August 22, 2001.          The third, neurologist



     1
 1         Fibromyalgia appears to be a controversial diagnosis, which some
 2   physicians contend is a “non-disease,” because objective laboratory tests and
 3   medical imaging studies cannot confirm the diagnosis. See Don L. Goldenberg,
 4   Fibromyalgia: Why Such Controversy?, 54 Annals of the Rheumatic Diseases 3, 3
 5   (1995), available at
 6   http://www.pubmedcentral.nih.gov/picrender.fcgi?artid=1005499&blobtype=pdf
 7   (“[C]ontroversy persists regarding criteria for diagnosis, potential
 8   pathophysiology, and treatment. Some prominent rheumatologists . . . question
 9   the very existence of fibromyalgia.”) (emphasis omitted); Alex Berenson, Drug
10   Approved. Is Disease Real?, N.Y. Times, Jan. 14, 2008, available at
11   http://www.nytimes.com/2008/01/14/health/14pain.html (“Fibromyalgia is a . . .
12   pain condition, whose very existence is questioned by some doctors.”).

                                           4
1    Dr. Randolph W. Evans, submitted a report indicating that Hobson

2    had mild lumbar spine abnormalities and no neurological

3    abnormalities, and expressing no opinion as to her ability to

4    work.

5         MetLife consulted an independent rheumatologist and internal

6    medicine specialist, Dr. Jefrey D. Lieberman, who opined that the

7    evidence Hobson submitted did not demonstrate that she suffered

8    from fibromyalgia or that she could not return to work.     Dr.

9    Lieberman contacted Dr. Sessoms, who stated that she was no

10   longer treating Hobson and was not sure if Hobson currently was

11   being treated for fibromyalgia.   MetLife approved Hobson’s claim

12   for short-term benefits, but on November 5, 2001, denied her

13   claim for LTD benefits.

14        Hobson appealed MetLife’s denial of her LTD benefits claim.

15   Hobson clarified that she continued to be a patient of Dr.

16   Sessoms and was about to undergo treatment for fibromyalgia.

17   Hobson also submitted an evaluation from Dr. Sessoms reiterating

18   her diagnosis that Hobson was unable to work, had limited

19   mobility, and suffered from various medical conditions, including

20   symptoms “consistent with fibromyalgia,” colitis, hypertension,

21   insomnia, lung disease, anemia, and depression.   Hobson also

22   submitted another report from Dr. Fernandez, which indicated that

23   Hobson was being treated for colitis and that other medical

24   conditions made her “feel much worse.”

25        MetLife referred Hobson’s file to Dr. Joseph M. Nesta, an

26   independent physician specializing in internal medicine and


                                       5
1    gastroenterology, who concluded that Hobson’s colitis “appear[ed]

2    to be stable,” that her fibromyalgia was not disabling, and that

3    the MRIs of her spine, which showed only “mild” abnormalities,

4    did not indicate that she was unable to work.   In March 2002,

5    MetLife upheld its denial of Hobson’s claim for LTD benefits.

6         LTD Benefits for Colitis, Rectal Bleeding, and Anemia

7         In August 2002, after Hobson submitted additional

8    information regarding her colitis, rectal bleeding, and anemia,

9    MetLife approved her LTD benefits claim.   In April 2003, after

10   consulting a physician trained in internal and occupational

11   medicine, who reported that Hobson’s colitis and anemia were

12   under control, and that she could perform “most jobs as long as

13   there was ready access to a bathroom,” MetLife terminated

14   Hobson’s LTD benefits.

15        LTD Benefits for Colitis-Related Surgery

16        On June 13, 2003, after Hobson underwent two surgical

17   procedures relating to her colitis, MetLife reinstated her LTD

18   benefits.   At the time, a MetLife nurse consultant disagreed with

19   the reinstatement and recommended that Hobson’s benefits be

20   discontinued because her colitis had been corrected by the

21   surgery, and her medical records did not indicate that she was

22   physically or psychologically impaired.

23        Hobson submitted a physician’s report indicating that she

24   had a yeast or fungal infection, and suffered from a “major

25   depressive disorder” whereby she was “unable to engage in

26   stress[ful] situations” or “interpersonal” interactions, and her


                                      6
1    “emotional and adaptive functioning ma[d]e [returning to work]

2    unfeasible.”    MetLife’s nurse consultant concluded that “the

3    submitted medical findings do not document a significant severity

4    of condition or provide evidence of a functional impairment that

5    would preclude [Hobson] from performing the duties of her

6    sedentary job.”

7         On July 20, 2004, Dr. Nesta, the physician who reviewed

8    Hobson’s file upon her initial appeal, reevaluated her case and

9    again concluded that her alleged impairments did not preclude her

10   from working.     On July 27, 2004, Hobson’s treating internist

11   responded to the reevaluation, stating that he “disagree[d] with

12   [MetLife’s] [r]eview due to insufficient data,” and expressing

13   concern about Hobson’s “possible systemic yeast infection.”       In

14   August 2004, MetLife terminated Hobson’s LTD benefits for the

15   second time.

16        LTD Benefits for Thyroid Cancer Surgery

17        In September 2004, after Hobson underwent surgery to treat

18   thyroid cancer, MetLife reinstated her LTD benefits for “a closed

19   period of time,” until November 12, 2004.    The physician who

20   performed the surgery recommended that Hobson return to work in

21   January 2005.    MetLife informed Hobson that by this time, over

22   thirty-six months had passed from her initial claim for benefits,

23   meaning that in order to be “disabled” under the Plan, she was

24   required to show that she could not perform the duties of any job

25   “reasonably fitted by [her] education, training, and experience,”

26   and not only the duties of her actual occupation.


                                        7
1         LTD Benefits for Dercum’s

2         In appealing MetLife’s termination of her LTD benefits in

3    2004, Hobson enclosed an updated report from Dr. Sessoms, which

4    explained that Hobson had some difficulty standing, walking, and

5    sitting.   Hobson also included a report from Dr. Paul Subrt, a

6    dermatologist, who diagnosed her with Dercum’s, which is a “rare,

7    chronic condition” whose symptoms include “painful adipose

8    tissue, extreme weakness and fatigability, chronic generalized

9    pain, fibromyalgia, epilepsy, cognitive dysfunction and

10   depression,” has no effective treatment, and “can lead to

11   lifelong debilitating disabilities.”

12        MetLife had two independent consultants review Hobson’s

13   file, both of whom concluded that none of Hobson’s alleged

14   impairments rendered her unable to work.       The first, an

15   internist, explained that the Dercum’s diagnosis was not well-

16   documented or supported, and that Hobson had not been given a

17   treatment plan.   The second, a neurologist and psychiatrist,

18   concluded that although Hobson had “a number of chronic medical

19   problems which are severe,” she appeared to be “functional” and

20   was “able to work without any difficulty” at her sedentary job.

21   In March 2005, MetLife upheld its denial of Hobson’s claim for

22   LTD benefits.

23        MetLife granted Hobson’s request for additional,

24   discretionary review of the claim denial and referred her file to

25   two more independent physicians.       The first, a psychiatrist,


                                        8
1    explained that “[t]here [we]re no complete psychiatric

2    evaluations in the documentation or any complete mental status

3    examinations.”   This consultant also determined that Hobson

4    “herself had submitted numerous letters [to MetLife which we]re .

5    . . very well written and contain[ed] no hints of any cognitive

6    impairment.”   The second consultant, a dermatologist, opined that

7    the Dercum’s “diagnosis actually was made by Ms. Hobson, not by

8    her doctor,” and “found that she made it according to information

9    . . . on the Internet.”   Dr. Subrt, the physician who authored

10   the brief, one-paragraph letter diagnosing Hobson with Dercum’s,

11   told MetLife’s consultant that he “d[id] not feel that Ms. Hobson

12   [wa]s disabled and d[id not] understand why she c[ould] not do

13   her job, which is sedentary.”   The second consultant also

14   concluded that, aside from Hobson’s subjective reports of pain,

15   no objective finding confirmed that she was unable to work.     On

16   May 5, 2005, MetLife informed Hobson that it upheld its denial of

17   her benefits claim and would not consider any further appeals,

18   because Hobson had “exhausted [her] administrative remedies under

19   the [P]lan.”

20        Hobson then submitted two letters to supplement her claim.

21   The first, authored by Dr. Subrt, explained that although he did

22   not “discern” any dermatologic disability, he was not qualified

23   to opine on whether she otherwise suffered disabilities.     The

24   second, a letter from her treating psychologist, stated that

25   Hobson’s depression had since worsened to the point of “severe


                                      9
1    despondent episodes” of “sufficient severity that [she wa]s

2    unable to function consistently enough to sustain employment.”

3    In letters dated May 11 and 19, 2005, MetLife informed Hobson

4    that her additional submissions had not persuaded it to

5    reconsider the denial of her benefits claim.

6    The ERISA Action

7         On August 18, 2005, Hobson responded to Metlife’s denial of

8    her administrative appeals by instituting this action.    Her

9    complaint alleges that MetLife was influenced by its conflict of

10   interest as both the evaluator and payor of benefit claims,

11   warranting de novo review, and that, in any event, it abused its

12   discretion in denying her claim for LTD benefits.   The parties

13   then filed cross-motions for summary judgment.

14        On December 12, 2006, the district court granted MetLife’s

15   motion and denied Hobson’s, concluding that MetLife did not act

16   arbitrarily and capriciously in denying Hobson’s claim for

17   benefits, because, inter alia, MetLife “reasonably took up each

18   and every aspect of the claim. . . .”   Hobson, No. 05 CV 7321,

19   Tr. at 28.

20        This appeal followed.

21                                Discussion

22   I.   Standard of Review

23        In an ERISA action, we review the district court’s grant of

24   summary judgment based on the administrative record de novo and

25   apply the same legal standard as the district court.   Pagan v.


                                    10
1    NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir. 1995).    “Summary

2    judgment is appropriate only where the parties’ submissions show

3    that there is no genuine issue as to any material fact and the

4    moving party is entitled to judgment as a matter of law.”    Fay v.

5    Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002).

6         Although generally an administrator’s decision to deny

7    benefits is reviewed de novo, where, as here, “written plan

8    documents confer upon a plan administrator the discretionary

9    authority to determine eligibility, we will not disturb the

10   administrator’s ultimate conclusion unless it is ‘arbitrary and

11   capricious.’”   Pagan, 52 F.3d at 441.   After the Supreme Court

12   rendered its decision in Metropolitan Life Insurance Co. v.

13   Glenn, -- U.S.--, 128 S. Ct. 2343 (2008), this court explained

14   that “a plan under which an administrator both evaluates and pays

15   benefits claims creates the kind of conflict of interest that

16   courts must take into account and weigh as a factor in

17   determining whether there was an abuse of discretion, but does

18   not make de novo review appropriate.”    McCauley v. First Unum

19   Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008).    A plaintiff’s

20   showing that the administrator’s conflict of interest affected

21   the choice of a reasonable interpretation is only one of “several

22   different considerations” that judges must take into account when

23   “review[ing] the lawfulness of benefit denials.”    Id. (internal

24   quotation marks omitted).




                                     11
1         In light of this, we find unpersuasive Hobson’s assertion

2    that de novo review is warranted on the basis of MetLife’s

3    structural conflict of interest.     We now turn to the question of

4    whether the district court erred in weighing MetLife’s conflict

5    of interest.

6         Hobson alleges that the district court failed to take into

7    account two documents in the record which show that MetLife was

8    influenced by its conflict of interest.     The district court

9    properly explained that it “must defer to the administrator’s

10   decision unless the decision is arbitrary and capricious,” and

11   that “the deference to be given to the administrator doesn’t

12   change unless the plaintiff shows that the administrator was, in

13   fact, influenced by the conflict of interest.”    Hobson, No. 05 CV

14   7321, Tr. at 4-5.   The district court, however, failed to (1)

15   discuss the evidence allegedly showing that MetLife’s conflict of

16   interest influenced its decision-making, (2) determine what role

17   MetLife’s conflict of interest may have played in its decision,

18   and (3) give that conflict any weight, as required by Glenn.     See

19   128 S. Ct. at 2351; see also McCauley, 551 F.3d at 133.

20        The first document is a September 14, 2004 email from one

21   KPMG employee to another stating that MetLife “is requesting a

22   very detailed job description” for Hobson and “is trying to cover

23   all basis [sic] for denying the LTD claim.”    The email suggests

24   that a third-party, who was not employed by Metlife, believed

25   that MetLife might be motivated by a desire to deny Hobson’s


                                     12
1    claim.    This suggestion, however, is belied by MetLife’s decision

2    to reinstate Hobson’s benefits six days later, after Hobson

3    informed MetLife that she had undergone surgery for thyroid

4    cancer.

5         The second document is a November 2002 “diary note” in

6    Hobson’s file in which a MetLife nurse recommended that the case

7    manager procure “updated medical” information and a “referral” to

8    other medical experts, because colitis “is a wax and wane type of

9    illness/disease,” and Hobson “would most likely not be found to

10   be T[otally] D[isabled] from any [occupation] . . . .”     Rather

11   than indicating that MetLife was influenced by its conflict of

12   interest, this note simply reflects the reviewing nurse’s

13   reasonable doubts as to whether Hobson’s condition would continue

14   to render her disabled, in light of a letter from the year in

15   which Hobson’s own reviewing physician indicated that Hobson’s

16   colitis was temporary and that she would be able to return to

17   work.

18        We are not persuaded that these documents show that

19   MetLife’s conflict of interest as evaluator and payor of benefits

20   influenced its reasonable interpretation of Hobson’s claim for

21   benefits.   Thus, we decline to afford MetLife’s conflict of

22   interest any weight in our review of MetLife’s benefit denial.

23   II. Substantial Evidence Supporting MetLife’s Determination

24        Under the arbitrary and capricious standard of review, we

25   may overturn an administrator’s decision to deny ERISA benefits


                                      13
1    “only if it was without reason, unsupported by substantial

2    evidence or erroneous as a matter of law.   This scope of review

3    is narrow[;] thus[,] we are not free to substitute our own

4    judgment for that of [the insurer] as if we were considering the

5    issue of eligibility anew.”   Pagan, 52 F.3d at 442 (internal

6    quotation marks and citations omitted).

7         Hobson contends that MetLife’s decision is not supported by

8    substantial evidence because MetLife relied on its paid medical

9    reviewers’ “speculative inferences,” despite “the reliable

10   evidence of Hobson’s doctors,” and specifically relied upon Dr.

11   Nesta’s report, even though he “failed to consider fibromyalgia

12   in his review” and only presented “opinions [that] were at best

13   ‘generic.’”

14        After August 2004, MetLife took five actions, each of which

15   had the effect of disallowing Hobson's claim for LTD benefits:

16   (A) the August 2004 termination of benefits after she recovered

17   from colitis-related surgery; (B) the December 2004 termination

18   after she recovered from thyroid cancer surgery; (C) the March

19   2005 denial of Hobson's first appeal after the thirty-six month

20   period had passed; (D) the May 5, 2005 denial of benefits after

21   additional review; and (E) the May 19, 2005 refusal to consider

22   further appeals despite two letters Hobson submitted from




                                     14
1    attending physicians.2      We evaluate each of these actions in

2    turn.

3          A.    August 2004 Termination of LTD Benefits After Recovery

4                from Colitis-Related Surgery

5          First, we conclude that MetLife’s termination of Hobson’s

6    LTD benefits after she underwent surgery to address her colitis

7    was not arbitrary and capricious.

8          The report prepared in 2004 by Dr. Nesta, the independent

9    physician consulted by MetLife, concluded that Hobson’s alleged

10   impairments did not preclude her from working.           Specifically, Dr.

11   Nesta determined that Hobson’s surgery “should have cured her

12   ulcerative colitis,” the MRI and her neurologist’s progress notes

13   indicated that she did not have “significant radiculopathy,” and

14   her neurologist’s decision to not take Hobson out of work

15   indicated that he “could not find any neurologic basis for

16   [Hobson’s] seizures and migraines.”         As for Hobson’s asthma,

17   fungal infection, and fibromyalgia, Dr. Nesta determined that

18   these conditions were not disabling.

19         Hobson’s own infectious disease specialist agreed that her

20   fungal infection did not prevent her from working.            Although her

21   treating internist “d[id] not agree that most of her ailments do

22   not preclude her from working” because he was concerned about her


1    2
           Because Hobson’s appeal focuses only on MetLife’s decision to terminate
2    her LTD benefits in August 2004 and subsequent decisions not to reinstate
3    benefits, we review only these determinations. Therefore, we do not examine
4    MetLife’s earlier decisions to deny Hobson’s initial benefits claim in
5    November 2001 and her first appeal in March 2002, or to terminate her LTD
6    benefits after her symptoms of colitis and anemia improved in April 2003.

                                          15
1    yeast infection, he did not submit additional information to

2    support Hobson’s claim for benefits.   In fact, he conceded that

3    there was “insufficient data” to determine her ability to work.

4         Hobson specifically challenges on appeal MetLife’s reliance

5    on Dr. Nesta’s 2004 report because Metlife “failed to consider

6    fibromyalgia in his review.”   Upon evaluating Hobson’s “final

7    diagnosis of fibromyalgia,” Dr. Nesta’s report again concluded

8    that fibromyalgia “does not usually preclude an individual from

9    working.”   Two years earlier, however, Dr. Nesta explained why he

10   concluded that Hobson was not disabled due to her fibromyalgia:

11   Hobson had no “documented trigger point tenderness” which is

12   normally part of a fibromyalgia diagnosis, no “hard evidence . .

13   . substantiate[d] her disability from a rheumatologic viewpoint,”

14   and her neurological examinations were “normal.”   Moreover, Dr.

15   Lieberman, another independent consultant who evaluated Hobson’s

16   record in 2001, opined that there wasn’t “any substantial global

17   or objective evidence to support” the opinion that Hobson was

18   “unable to perform any occupation because of her fibromyalgia;”

19   instead, Dr. Lieberman stated that “[t]here certainly are a wide

20   range of treatments available for patients with fibromyalgia to

21   allow them to be more productive, gainfully employed, and have a

22   better quality of life.”

23        As the Supreme Court has explained, “courts have no warrant

24   to require administrators automatically to accord special weight

25   to the opinions of a claimant’s physician; nor may courts impose


                                     16
1    on plan administrators a discrete burden of explanation when they

2    credit reliable evidence that conflicts with a treating

3    physician’s evaluation.”    Black & Decker Disability Plan v. Nord,

4    538 U.S. 822, 834 (2003).   Thus, MetLife acted within its

5    discretion in relying upon the conclusions of its independent

6    consultants’ three reports.   Because the three reports provided

7    detailed, substantive analysis of Hobson’s fibromyalgia, we

8    cannot find that MetLife unreasonably failed to consider Hobson’s

9    fibromyalgia.

10         As Hobson’s own treating physician conceded, it is far from

11   clear that Hobson’s medical records demonstrated that she was

12   disabled; rather, we find ample evidence in Hobson’s file to

13   support MetLife’s determination that she failed to make this

14   showing.

15        B.    December 2004 Termination After Thyroid Cancer Surgery

16        In December 2004, after reinstating Hobson’s LTD benefits

17   when she underwent surgery for thyroid cancer, MetLife terminated

18   her benefits.   Metlife reasonably concluded that Hobson was not

19   disabled, given that the same physician who operated on Hobson’s

20   thyroid cancer also recommended that she return to work in

21   January 2005.   Thus, the record substantially supports MetLife’s

22   termination of her LTD benefits, a decision we do not find

23   arbitrary and capricious.

24        C.    March 2005 Denial of Initial Appeal After Thirty-Six

25              Month Period


                                      17
1         In appealing the denial of her benefits claim, Hobson

2    submitted a report from Dr. Subrt diagnosing her with Dercum’s

3    and an updated evaluation from Dr. Sessoms explaining that

4    Hobson’s symptoms included several chronic medical conditions.

5         Substantial evidence in the record supports MetLife’s

6    determination that Hobson was not disabled due to Dercum’s.      As

7    the first consultant, internist Dr. Blair D. Truxal, explained,

8    Dr. Subrt’s letter consisted only of “one brief paragraph,” which

9    Hobson supplemented with “fourteen pages of information on

10   [Dercum’s] disease . . . researched from the Internet.”    Dr.

11   Truxal concluded that “no diagnostic criteria or physical

12   findings” supported the diagnosis.     In fact, he pointed to four

13   diagnostic criteria that Hobson lacked.    Finally, Dr. Truxal

14   explained that Hobson’s records did not specify which of the

15   three types of Dercum’s she allegedly had, or mention any

16   treatment plan for the disease.

17        MetLife’s additional determination that none of Hobson’s

18   other alleged ailments precluded her from work was not

19   unreasonable.   The second consultant, neurologist and

20   psychiatrist Dr. John F. Delaney, Jr. opined that, although

21   Hobson had “a number of chronic medical conditions which are

22   severe,” she remained “functional” and was “able to work without

23   any difficulty” at her sedentary job.    Because MetLife was

24   entitled to rely on these written reports, Black & Decker, 538




                                       18
1    U.S. at 834, its denial of Hobson's claim was neither arbitrary

2    nor capricious.

3         D.    May 2008 Denial After Additional Review of Dercum’s

4               Diagnosis

5         Upon granting Hobson’s request for additional review of the

6    denial of her LTD benefits claim, MetLife referred Hobson’s file

7    to two additional physicians.   Both reports support MetLife’s

8    decision to uphold its benefit denial.

9         The first report from a psychiatrist concluded that Hobson

10   was not cognitively impaired because she had not submitted any

11   complete psychiatric or mental status examination supporting her

12   claim, and seemed able to communicate cogently in writing with

13   MetLife.

14        The second report provided additional support for MetLife’s

15   determination that Hobson was not disabled due to Dercum’s.    The

16   consultant, a dermatologist, opined that Hobson herself, rather

17   than a doctor, had diagnosed herself with Dercum’s, and that no

18   objective evidence accompanied her subjective reports of pain to

19   demonstrate that she was disabled.

20        Hobson’s own physician, Dr. Subrt, who wrote the letter

21   stating his belief that she had Dercum’s, conceded that he “d[id]

22   not feel that Ms. Hobson [wa]s disabled and d[id not] understand

23   why she cannot do her job, which is sedentary.”   Because Hobson’s

24   treating physician and two independent consultants all opined

25   that Hobson was not disabled from working, we find that MetLife’s


                                     19
1    decision to uphold its denial of her claim for benefits fell

2    squarely within its discretion.

3           E.   May 2005 Refusal to Consider Further Appeals

4           Both of the letters Hobson submitted after MetLife informed

5    her that it would not consider any further appeals failed to

6    provide additional, objective evidence that she was disabled.

7           The first letter from Dr. Subrt merely clarified that he was

8    not qualified to opine on whether she suffered non-dermatologic

9    disabilities, and explained that he did not “discern” any

10   dermatologic disability.    The second letter from Hobson’s

11   psychologist stated that Hobson was unable to function or work

12   due to her depression, but did not include or append any evidence

13   substantiating this conclusion.

14          In light of the substantial evidence in Hobson’s file

15   supporting MetLife’s determination that she was not disabled from

16   sedentary work, we find that MetLife did not abuse its discretion

17   in May 2005 by refusing to consider Hobson’s request for a

18   further appeal.

19   III.    MetLife’s Full and Fair Review of Hobson’s Claim

20          Section 503(2) of ERISA requires that claims for benefits be

21   afforded a “full and fair review by the appropriate named

22   fiduciary of the decision denying the claim.”    29 U.S.C. §

23   1133(2).    The district court concluded that MetLife afforded

24   Hobson such a review by “reasonably t[aking] up each and every

25   aspect of the claim.”    Hobson, No. 05 CV 7321, Tr. at 28.


                                       20
1         Hobson alleges that MetLife failed to fully and fairly

2    review her benefits claim by (A) not notifying her of what

3    additional information she needed to “perfect her claim”; (B)

4    requiring objective support for her medical conditions; (C)

5    failing to consider all the medical evidence she submitted; (D)

6    giving undue weight to the opinions of MetLife’s consultants over

7    those of Hobson’s treating physicians; (E) failing to request an

8    independent medical examination, as provided for in its own

9    policy; and (F) not considering the Social Security

10   Administration’s (“SSA”) finding of disability for the same

11   medical conditions for which she requested LTD benefits from

12   MetLife.   We review each argument in turn and find each to be

13   without merit.

14        A.    ERISA Notice Requirement

15        Section 503(1) of ERISA contains a general requirement

16   whereby, upon denying a claim for benefits, a plan administrator

17   must provide the claimant with “adequate notice in writing . . .

18   setting forth the specific reasons for such denial, written in a

19   manner calculated to be understood by the participant.”    29

20   U.S.C. §   1133(1).   ERISA regulations further require that the

21   administrator furnish the claimant with a “description of any

22   additional material or information necessary for the claimant to

23   perfect the claim and an explanation of why such material or

24   information is necessary . . . .”     29 C.F.R. §

25   2560.503-1(g)(1)(iii).    As we have explained, the purpose of


                                      21
1    ERISA’s notice requirement is to “provide claimants with enough

2    information to prepare adequately for further administrative

3    review or an appeal to the federal courts.”   Juliano v. Health

4    Maint. Org. of NJ, 221 F.3d 279, 287 (2d Cir. 2000) (internal

5    quotation marks omitted).

6         In past cases--including the two cited by Hobson--in which

7    courts found that plan administrators failed to substantially

8    comply with the ERISA notice requirement by not notifying

9    claimants of information necessary to perfect their claims, the

10   administrators also failed to explain the specific reasons for

11   the benefit denial.   See, e.g., Schleibaum v. Kmart Corp., 153

12   F.3d 496, 499 (7th Cir. 1998); Halpin v. W.W. Grainger, Inc., 962

13   F.2d 685, 694 (7th Cir. 1992); Dzidzovic v. Bldg. Serv. 32B-J

14   Health Fund, No. 02 CV 6140, 2006 WL 2266501, at *8, 11 (S.D.N.Y.

15   Aug. 7, 2006); Dawes v. First Unum Life Ins. Co., No. 91 Civ.

16   0103, 1992 WL 350778, at *3-5 (S.D.N.Y. Nov. 13, 1992).

17        There is no question that MetLife communicated to Hobson its

18   specific reasons for denying her LTD benefits.   After Hobson

19   alleged that she suffered from several conditions including

20   debilitating depression, seizures, and Dercum’s, MetLife’s March

21   2005 letter explained why it concluded that she “seem[s] to be

22   functional.”   In terms of her depression, the letter stated that

23   what is “lacking is whether the depression would be severe enough

24   to actually have suicidal ideation or whether this depression

25   requires inpatient hospitalization.”   As for her seizures, the


                                     22
1    letter stated that “what was lacking from [her] file” was

2    “whether [she was] having ongoing seizures that are not well

3    controlled and prevent [her] from driving or getting around.”     As

4    for her Dercum’s diagnosis, MetLife explained that Hobson’s

5    records lacked evidence that she exhibited four diagnostic

6    criteria for Dercum’s, and that “there was no mention in the

7    records of what type [of Dercum’s she] allegedly ha[s]” or “a

8    treatment plan for th[e] disease.”    The letter further stated

9    that Hobson’s colitis and thyroid cancer appeared to be cured by

10   the surgical procedures she underwent, and that her medical

11   records did not demonstrate that she was disabled due to spinal

12   degenerative disease or debilitating migraines.

13        It is noteworthy that after Hobson’s initial claim for

14   benefits was denied in November 2001 and she submitted additional

15   medical information, MetLife granted Hobson LTD benefits on three

16   separate occasions, thereby reflecting that MetLife “reasonably

17   took up each and every aspect” of Hobson’s claims.    Juliano, 221

18   F.3d at 287.   Finally, Hobson’s ability to perfect her claim

19   three times supports our conclusion that she was fairly apprised

20   of how she could “prepare adequately” for subsequent appeals of

21   earlier benefit denials.   Id.   Therefore, we are persuaded that

22   MetLife substantially complied with ERISA’s notice regulations.

23        B.   Requirement of Objective Medical Evidence

24        Hobson alleges that MetLife failed to afford her full and

25   fair review of her LTD benefits claim by requiring “objective


                                      23
1    support for her medical conditions,” because MetLife's own policy

2    does not require such proof, and because this court has clarified

3    that subjective complaints alone may constitute sufficient

4    evidence of disability.   See Connors v. Conn. Gen. Life Ins. Co.,

5    272 F.3d 127, 136 (2d Cir. 2001) (“It has long been the law of

6    this Circuit that the subjective element of pain is an important

7    factor to be considered in determining disability.”) (internal

8    quotation marks omitted).

9         This court has never directly addressed whether it is

10   reasonable for a plan administrator, who retains the

11   discretionary authority to interpret the terms of its plan, to

12   require the plaintiff to produce objective medical evidence,

13   where such a requirement is not expressly set out in the plan.

14   However, “several courts in this district have found that it is

15   not unreasonable or arbitrary for a plan administrator to require

16   the plaintiff to produce objective medical evidence of total

17   disability in a claim for disability benefits.”   Fitzpatrick v.

18   Bayer Corp., No. 04 Civ. 5134, 2008 WL 169318, at *10 (S.D.N.Y.

19   Jan. 17, 2008); see also Suren v. Metro. Life Ins. Co., No. 07-

20   CV-4439, 2008 WL 4104461, at *11 (E.D.N.Y. Aug. 29, 2008)

21   (collecting cases and concluding that “MetLife did not abuse its

22   discretion when it based its opinion on objective tests and

23   examinations, despite Suren’s subjective complaints of fatigue

24   and weakness”).

25        We conclude that it is not unreasonable for ERISA plan


                                     24
1    administrators to accord weight to objective evidence that a

2    claimant’s medical ailments are debilitating in order to guard

3    against fraudulent or unsupported claims of disability.   As the

4    Eighth Circuit has explained, even in a claim involving

5    fibromyalgia, “trigger-point findings . . . constitute objective

6    evidence of the disease,” and it is not unreasonable for a plan

7    administrator to require such evidence so long as the claimant

8    was so notified.    Johnson v. Metro. Life Ins. Co., 437 F.3d 809,

9    813-14 (8th Cir. 2006).   When MetLife denied Hobson’s initial

10   appeal in March 2002, it informed her that “there has been no

11   documentation . . . that substantiates documented trigger point

12   tenderness that falls within the major criteria for the diagnosis

13   of fibromyalgia.”   In light of this notification, MetLife acted

14   within its discretion in requiring some objective evidence that

15   Hobson was disabled from performing in a sedentary capacity.

16        Such a requirement is not contradicted by any provision of

17   MetLife’s own policy, which provides that an employee’s claim may

18   be denied if she cannot “obtain sufficient medical evidence to

19   support” her disability claim.   By the terms of the Plan, MetLife

20   retains the discretion to interpret what constitutes “sufficient

21   medical evidence,” and MetLife’s determination that such evidence

22   requires objective support, rather than merely subjective reports

23   of pain, is reasonable.   In this case, MetLife’s conclusion that

24   Hobson's subjective pain did not rise to the level of rendering

25   her unable to work was supported by Dr. Subrt, the very doctor


                                      25
1    who diagnosed Hobson with Dercum’s, and who reached the same

2    conclusion.   Thus, we decline to hold that MetLife’s decision to

3    deny Hobson’s claim for benefits, because she failed to provide

4    objective evidence showing that she was disabled from sedentary

5    work deprived her of full and fair review.

6         C.   Consideration of All Medical Evidence

7         Hobson also alleges that MetLife did not properly consider

8    all of her medical evidence, ignoring her non-physical ailments

9    and co-morbid conditions, the impact of her medications, and her

10   subjective complaints of pain.   We have already rejected Hobson’s

11   allegation that MetLife ignored her subjective complaints in the

12   prior section.   We now turn to the remaining evidence which

13   Hobson alleges that MetLife arbitrarily and capriciously ignored.

14        There is no merit to Hobson’s contentions that MetLife

15   “intentionally ignored” evidence that she was disabled due to

16   non-physical ailments and co-morbid conditions, that is,

17   conditions that pertain to two or more disorders simultaneously--

18   here, fatigue, inability to concentrate, cognitive functioning,

19   and memory loss--and that MetLife should have evaluated such

20   evidence together, rather than in isolation.   MetLife had two

21   independent psychiatrist consultants evaluate Hobson's file.     The

22   first concluded that Hobson's “psychiatric and cognitive

23   functioning [wa]s essentially within normal limits,” that there

24   were no “objective findings of any cognitive impairment or

25   problems with memory or cognition,” and that her own


                                      26
1    correspondences indicated that her non-physical ailments did not

2    impair her ability to function.    The second explained that

3    Hobson’s depression did not render her unable to perform her

4    duties, as MetLife mentioned in its March 2005 letter to Hobson.

5    Thus, MetLife expressly considered Hobson’s non-physical ailments

6    and co-morbid conditions, and the two consultant reports that

7    Metlife relied upon substantially supported MetLife’s denial of

8    Hobson’s claim for LTD benefits.       See Suren, 2008 WL 4104461, at

9    *11 (finding that benefit denial was not arbitrary and capricious

10   where independent physicians determined that claimant was not

11   cognitively impaired).

12        We are also not persuaded that MetLife abused its discretion

13   by not taking into consideration the side effects Hobson

14   allegedly suffered due to the daily medications she took to

15   address her conditions.   Hobson’s brief failed to elaborate on

16   this argument:    Specifically, she failed to explain how exactly

17   she had established to Metlife that her medications rendered her

18   unable to work.   For example, Hobson could have provided, but did

19   not in fact provide, letters from her treating physicians opining

20   that her medications hindered her functional abilities.      As the

21   Tenth Circuit explained in rejecting a similar claim, “the

22   question for this court is not whether MetLife made the ‘correct’

23   decision [but] whether MetLife had a reasonable basis for the

24   decision that it made.”   Chalker v. Raytheon Co., 291 F. App’x

25   138, 145 (10th Cir. 2008).   Here, MetLife reasonably concluded


                                       27
1    that Hobson remained able to work, relying on the opinions of

2    seven independent consultants, one of whom expressly stated that

3    Hobson “ha[d] been on medications for a considerable period of

4    time, and these medications d[id] not give her side effects,

5    according to the medical records reviewed,” and another who

6    explained that Hobson appeared cognitively functional, as

7    indicated by her detailed and cogent communications with MetLife.

8    In light of these evaluations, MetLife reasonably concluded that

9    Hobson remained able to function despite taking various

10   medications to treat her medical ailments.

11        D.   Weighing of Competing Medical Evaluations

12        Hobson also contends that MetLife gave undue weight to the

13   opinions of the independent physicians it consulted, first by

14   retaining those consultants, and then by affording more weight to

15   those consultants’ opinions than to those of Hobson’s treating

16   physicians.   We find no merit to Hobson’s argument.

17        MetLife had a total of seven independent physicians, none of

18   whom was a MetLife employee, and all of whom were Board-certified

19   in one or more of the specialty areas relevant to Hobson’s

20   diagnoses and conditions, review Hobson’s file.   MetLife did not

21   abuse its discretion by considering these trained physicians’

22   opinions solely because they were selected, and presumably

23   compensated, by Metlife.   See Suren, 2008 WL 4104461, at *11

24   (“That they were paid consultants does not disable MetLife from

25   considering their opinions in making benefits decisions.”).


                                     28
1    Indeed, it is customary for plan administrators to do so in

2    evaluating ERISA claims.   Second, MetLife is not required to

3    accord the opinions of a claimant’s treating physicians “special

4    weight,” especially in light of contrary independent physician

5    reports.   Black & Decker, 538 U.S. at 834.

6         Moreover, nothing in the record indicates that MetLife

7    arbitrarily refused to credit Hobson’s medical evidence.

8    MetLife’s consultants repeatedly attempted to contact Hobson’s

9    treating physicians, several of whom concluded that Hobson’s

10   diagnoses and conditions did not inhibit her from working.

11        Hobson specifically challenges MetLife’s reliance on its

12   independent physicians’ reports in determining that she was not

13   disabled due to Dercum’s, which these physicians characterized as

14   a rare affliction which “nobody is sure about.”   However, as we

15   have already noted, Hobson’s own treating physician, the same one

16   who sent a letter diagnosing Hobson with Dercum’s, concluded that

17   she was not disabled due to Dercum’s.   Thus, there is no merit to

18   Hobson’s argument that MetLife unreasonably relied upon

19   speculative and “unqualified” physicians’ opinions.

20        E.    MetLife’s Decision Not to Request an Independent

21              Examination

22        MetLife declined to order an in-person, independent medical

23   examination (“IME”), as provided for in the Plan.   In challenging

24   MetLife’s decision as arbitrary and capricious, Hobson relies on

25   Chan v. Hartford Life Ins. Co., No. 02 Civ. 2943, 2004 WL 2002988


                                     29
1    (S.D.N.Y. Sept. 8, 2004), in which the district court found that

2    the plan administrator’s failure to order an IME “call[ed] into

3    question its decision to terminate [claimant]’s benefits.”     Id.

4    at *9.   As in Chan, MetLife’s benefits policy permits MetLife to

5    order an in-person IME, indicating that such an evaluation is

6    valuable in certain situations.

7         The six listed situations include the following three:

8    “[c]larification when the stated diagnosis is not usually

9    disabling,” “[t]he stated diagnosis is vague and supported only

10   by subjective information,” and “[t]here are inconsistencies in

11   the medical evidence or conflicting opinions from various medical

12   examinations (i.e. . . . the [SSA]).”   These factors, which

13   comprise half of the enumerated factors, are present in Hobson’s

14   case.

15        Consistent with its policy, MetLife could have ordered an

16   IME because it explained to Hobson that her neurologic,

17   gastroenterologic, and psychiatric conditions did not render her

18   unable to perform a sedentary position, and because Hobson’s

19   claim was rejected due to her failure to provide objective

20   evidence of the ailments she subjectively reported.   Also, there

21   were conflicting determinations as to whether Hobson’s

22   fibromyalgia was disabling, and Hobson was awarded social

23   security disability benefits based on the same medical reports

24   submitted to MetLife.

25        However, as the four circuits that have addressed the


                                       30
1    question have concluded, where the ERISA plan administrator

2    retains the discretion to interpret the terms of its plan, the

3    administrator may elect not to conduct an IME, particularly where

4    the claimant’s medical evidence on its face fails to establish

5    that she is disabled.3

6          We share the Seventh Circuit’s concern that requiring the

7    plan administrator to order an IME, despite the absence of

8    objective evidence supporting the applicant’s claim for benefits,

9    risks casting doubt upon, and inhibiting, “the commonplace

10   practice of doctors arriving at professional opinions after

11   reviewing medical files,” which reduces the “financial burden of

12   conducting repetitive tests and examinations.”           Davis v. Unum

13   Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir. 2006).

14         As in past sister circuit cases finding that a plan

15   administrator need not order an IME, here, Hobson failed to

16   produce sufficient objective evidence supporting her benefits

17   claim.   Moreover, several of her own treating physicians opined



     3
 1         See, e.g., Williams v. Aetna Life Ins. Co. of Boston, 509 F.3d 317, 325
 2   (7th Cir. 2007) (finding reasonable a denial of benefits where the
 3   administrator refused to order an independent review and there was a lack of
 4   “objective support” regarding the claimant’s “functional abilities”); Rutledge
 5   v. Liberty Life Assurance Co., 481 F.3d 655, 661 (8th Cir. 2007) (“An ERISA
 6   plan administrator need not order an [IME] when the insured’s evidence
 7   supporting a disability claim is facially insufficient.”); Calvert v. Firstar
 8   Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005) (“Although th[e plan] provision
 9   allows Liberty to commission a physical examination of a claimant, there is
10   nothing in the plan language that expressly bars a file review by a physician
11   in lieu of such a physical exam.”) (emphasis in original); Nicula v. First
12   Unum Life Ins. Co., 23 F. App’x 805, 807 (9th Cir. 2001) (finding no need for
13   a physical exam where no “conflicting medical evidence” rebutted the treating
14   physician’s report). See also Fought v. Unum Life Ins. Co. of Am., 379 F.3d
15   997, 1015 (10th Cir. 2004) (denying an IME where the plan administrator was
16   unable to offer “more than a scintilla” of evidence that claimant was not
17   disabled under the plan) (internal quotation marks omitted).

                                          31
1    that she was able to return to work, thereby significantly

2    undermining her benefits claim.    Finally, the Plan’s guidelines

3    only list situations in which IMEs may be “valuable,” not where

4    they are necessary.    Because this court only disturbs a plan

5    administrator’s determination if it is arbitrary and capricious,

6    we are unconvinced that the Plan obliged MetLife to conduct an

7    IME; rather, by not ordering such an examination, MetLife simply

8    exercised its discretion to decline to pursue one option at its

9    disposal.

10        F.     Consideration of the SSA’s Finding of Disability

11        MetLife required Hobson to apply for social security

12   disability benefits, and in May 2003, the SSA awarded Hobson such

13   benefits on the basis that she suffered from colitis and

14   fibromyalgia.    Hobson alleges that both the district court and

15   MetLife failed to consider her social security disability

16   benefits award in making their LTD determinations.

17        Where the administrator “requires a claimant to pursue

18   social security disability to reduce the amount of benefits due

19   under the plan,” Leffew v. Ford Motor Co., 258 F. App’x 772, 778

20   -779 (6th Cir. 2007), and subsequently determines that the

21   claimant is not entitled to ERISA benefits, the Sixth Circuit has

22   “counsel[led] a certain skepticism of a plan administrator’s

23   decision-making,” Calvert, 409 F.3d at 295; see also Leffew, 258

24   F. App’x at 779.    Although the SSA’s definition of the term

25   “disability” is not necessarily coextensive with an ERISA plan’s


                                       32
1    definition of that term, see Kunstenaar v. Conn. Gen. Life Ins.

2    Co., 902 F.2d 181, 184 (2d Cir. 1990), the Sixth Circuit

3    nevertheless considers an award of social security disability

4    benefits to be a relevant factor in determining whether a

5    claimant is disabled under an ERISA plan, see Calvert, 409 F.3d

6    at 295.

7         Here, it does not appear that either MetLife or the district

8    court considered the SSA’s conclusion that Hobson was disabled,

9    as that term is defined by the SSA; neither MetLife’s letters

10   denying Hobson’s claim for LTD benefits nor the district court’s

11   decision discuss that conclusion.    Still, between the time that

12   Hobson submitted the diagnoses upon which the SSA awarded her

13   disability benefits and August 2004, when MetLife sent her its

14   next letter terminating her LTD ERISA benefits, she had undergone

15   surgery for her colitis.   MetLife terminated Hobson’s benefits on

16   the basis that she had successfully recovered from this surgery;

17   thus, the SSA’s determination as to her pre-surgical condition

18   was no longer relevant when Metlife denied her benefits claim.

19   Compare with Ladd v. ITT Corp., 148 F.3d 753, 755-56 (7th Cir.

20   1998) (determining that the claim denial was “irrational” where

21   the claimant’s medical condition worsened after the SSA awarded

22   her benefits but before the plan administrator denied her ERISA

23   benefits).

24        As for Hobson’s fibromyalgia diagnosis, substantial evidence

25   supported MetLife’s determination that the condition did not


                                     33
1    render her disabled, as explained above.      Supra Part II.A; see

2    also Suren, 2008 WL 4104461, at *10 (“In light of all the medical

3    evidence in the record, . . . [the court] cannot responsibly find

4    [the administrator’s] decision to be without reason . . . .”).

5         We encourage plan administrators, in denying benefits

6    claims, to explain their reasons for determining that claimants

7    are not disabled where the SSA arrived at the opposite

8    conclusion:   Doing so furthers ERISA’s goal of providing

9    claimants with additional information to help them perfect their

10   claims for subsequent appeals.    See 29 U.S.C. § 1133; 29 C.F.R. §

11   2560.503-1(g)(1)(iii).   Nonetheless, especially in light of the

12   substantial evidence supporting its determination, we decline to

13   hold that MetLife’s failure to do so in this case renders its

14   denial of Hobson’s LTD benefits claim arbitrary and capricious.

15                                    CONCLUSION

16        For the foregoing reasons, the judgment of the district

17   court is AFFIRMED.




                                       34
