                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                     No. 05-14005                         JULY 31, 2006
                               ________________________                 THOMAS K. KAHN
                                                                             CLERK
                         D. C. Docket No. 02-01140-CV-JEC-1

GREGORY L. TIPPITT,


                                                                    Plaintiff-Appellant,

                                            versus

RELIANCE STANDARD LIFE INSURANCE COMPANY,
MUNICH AMERICAN REASSURANCE COMPANY GROUP
LONG TERM DISABILITY INSURANCE PLAN,


                                                                    Defendants-Appellees.


                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                       (July 31, 2006)

Before BIRCH and CARNES, Circuit Judges, and TRAGER,* District Judge.

       *
         Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.
CARNES, Circuit Judge:

      Gregory L. Tippitt appeals the district court’s entry of judgment in favor of

Reliance Standard Life Insurance Company and Munich American Reassurance

Company Group Long Term Disability Insurance Plan in his action for wrongful

denial of benefits under the Employee Retirement Income Security Act (ERISA),

29 U.S.C. § 1001 et seq.

                                          I.

      In July 1982 Tippitt began working as a senior systems programmer at

Munich American Reassurance Company. He enrolled in the Munich American

Reassurance Company Group Long Term Disability Insurance Plan (“MARC

Plan”), a benefit that was made available to him as an employee. The MARC Plan

is an “employee welfare benefit plan,” see 29 U.S.C. § 1002(1), as well as a “group

health plan,” see id. § 1191b(a)(1), governed by ERISA. Tippitt is a “participant”

in the plan. See id. § 1002(7).

      The MARC Plan is insured by a policy that Munich purchased from

Reliance. Reliance administers the plan and pays all benefits from its own assets.

See 29 U.S.C. § 1002(21)(A)(i), (iii). To the extent that it exercises any

discretionary control or authority respecting management of the plan or its assets,

Reliance is a fiduciary under ERISA. Firestone Tire & Rubber Co. v. Bruch, 489



                                          2
U.S. 101, 113, 109 S. Ct. 948, 955–56 (1989); Cotton v. Mass. Mut. Life Ins. Co.,

402 F.3d 1267, 1277 (11th Cir. 2005). As a fiduciary, Reliance must administer

the plan “for the exclusive purpose of . . . providing benefits to participants and

their beneficiaries” and “in accordance with the documents and instruments

governing the plan . . . .” 29 U.S.C. § 1104(a)(1)(A)(i), (D). Reliance must also

provide a “full and fair review” of claim denials. Id. § 1133(2).

      The MARC Plan states that an insured is entitled to monthly benefits if he

“(1) is Totally Disabled as the result of a Sickness or Injury covered by this Policy;

(2) is under the regular care of a Physician; (3) has completed the Elimination

Period; and (4) submits satisfactory proof of Total Disability to us.” An insured is

“totally disabled” if “during the Elimination Period, an Insured cannot perform

each and every material duty of his/her regular occupation.” The plan does not

define the term “regular occupation.” An insured completes the elimination period

by being totally disabled for 180 consecutive days. After 180 days of total

disability have elapsed, the insured may begin receiving benefits.

      The MARC Plan states that an insured is “partially disabled” if “as a result

of an Injury or Sickness [the] Insured is capable of performing the material duties

of his/her regular occupation on a part-time basis or some of the material duties on

a full-time basis.” The plan notes that “[a]n Insured who is Partially Disabled will



                                           3
be considered Totally Disabled, except during the Elimination Period.” In other

words, an insured who is only partially disabled, as opposed to totally disabled,

during the first 180 days of his disability is not entitled to any benefits under the

plan. However, an insured who is totally disabled for the first 180 days of his

disability, and who later improves to the point of being partially disabled, is

entitled to benefits.

       While employed at Munich, Tippitt suffered from joint pain, back pain,

cluster headaches, and fatigue. Between December 1997 and September 1999, he

regularly visited his primary care physician for treatment. On November 30, 1999,

that physician referred Tippitt to a second physician, who is a board certified

immunologist and rheumatologist. Tippitt visited that specialist several times over

the course of the following year and complained to him about pain in multiple

joints, particularly in his hips, and reported that his activity levels were

increasingly restricted.

       On January 10, 2000, shortly after Tippitt was promoted to assistant

manager of computer information systems, he resigned from his job. On June 20,

2000, he filed an application for benefits, claiming that he became totally disabled

on January 7, 2000. Tippitt’s primary care physician, specialist, physical therapist,

and ophthalmologist submitted reports about his medical condition to Reliance.



                                            4
      In support of his application for benefits, Tippitt sent Reliance a Position

Questionnaire which had been prepared by him and approved by Munich’s

assistant vice president of information services. The questionnaire stated that

Tippitt’s duties included implementing and maintaining all computer hardware and

software systems, providing technical assistance to staff, conducting research and

development, and performing administrative tasks. Munich also submitted to

Reliance a Job Analysis form, which reported that Tippitt was “frequently”

required to stand, walk, and sit while performing his job. The form also indicated

that Tippitt’s job required him to use both of his hands and did not allow him to

alternate between sitting and standing.

      On October 24, 2000, Reliance notified Tippitt that he was ineligible for

benefits because, under the terms of the plan, he was not “‘Totally Disabled’ from

each and every material duty of [his] occupation.” Reliance found that Tippitt’s

job most closely resembled the job description for “manager, computer operations”

from the Department of Labor’s Dictionary of Job Titles, and Reliance used that

job description, instead of the actual duties of Tippitt’s job, to define his regular

occupation. Reliance determined that Tippitt was “capable of sedentary level

activity with limited repetitive use of [his] upper extremities and the ability to




                                            5
alternate position as needed.” It concluded that he was “capable of performing a

majority of the material duties of [his] occupation.”

      On November 17, 2000, Tippitt asked Reliance to review its denial of his

claim. In support of his request for review, Tippitt provided Reliance with updated

medical records from his treating physicians.

      In a letter dated April 2, 2001, Reliance stated that it had affirmed its

decision to deny benefits. The letter explained that: “In order to meet the

definition of ‘Total Disability,’ an Insured must suffer a condition so severe, it

renders him or her unable to perform the material duties of his or her regular

occupation,” and that he had not shown that. Reliance acknowledged that Tippitt

complains of pain with prolonged sitting, but it said that the pain “should not limit

his ability to perform his occupation as this occupation would allow for ample

opportunity for position changes.” The letter informed Tippitt that Reliance’s

decision was “now final” because he had exhausted all of the administrative

remedies available under the plan.

      On April 3, 2002, Tippitt filed suit under ERISA against Reliance, and also

against the MARC Plan as an “entity,” see 29 U.S.C. § 1132(d)(1), alleging that he

had been wrongfully denied benefits. The relief Tippitt sought was all benefits due

him under the plan, an order enforcing and clarifying his right to future benefits,



                                           6
declaratory and injunctive relief, and interest, costs, and attorney’s fees. In the

alternative, Tippitt sought reversal of the denial of benefits or an order remanding

the claim to the MARC Plan and requiring an additional administrative review,

along with interest, costs, and attorney’s fees.

      Following a bench trial, the district court issued an order on June 22, 2005,

denying Tippitt any relief and entering judgment in favor of Reliance and the

MARC Plan. The order explained in some detail the district court’s reasoning.

That reasoning and our discussion of it will be easier to follow if we precede them

with an explanation of the applicable legal framework.

                                          II.

      A court must follow a well-defined series of steps in reviewing a denial of

benefits decision in an ERISA case. See HCA Health Servs. of Ga., Inc., v.

Employers Health Ins. Co., 240 F.3d 982, 993–95 (11th Cir. 2001). “At each step,

the court makes a determination that results in either the progression to the next

step or the end of the inquiry.” Id. at 993.

      In step one, a court must determine which standard to apply in reviewing the

claims administrator’s benefits decision. Hunt v. Hawthorne Assocs., Inc., 119

F.3d 888, 912 (11th Cir. 1997). ERISA itself does not provide the appropriate

standard. Firestone, 489 U.S. at 108–09, 109 S. Ct. at 953 (1989); Marecek v.



                                           7
BellSouth Telecomms., Inc., 49 F.3d 702, 705 (11th Cir. 1995). A court chooses

the appropriate standard after examining the plan documents to determine whether

they grant the administrator discretion to interpret disputed terms. HCA, 240 F.3d

at 993. If the court finds that the documents do not grant the administrator

discretion, it applies de novo review to the administrator’s benefits determination

and does not proceed to the remaining steps. Firestone, 489 U.S. at 115, 109 S. Ct.

at 956–57; Buckley v. Metro. Life, 115 F.3d 936, 939 (11th Cir. 1997). “If the

court finds that the documents grant the claims administrator discretion, then at a

minimum, the court applies arbitrary and capricious review and possibly

heightened arbitrary and capricious review” and proceeds to the second step.

HCA, 240 F.3d at 993.

      In step two, regardless of whether arbitrary and capricious review or the

heightened form of that standard of review applies, the court reviews de novo the

claims administrator’s interpretation of the plan to determine whether it is

“wrong.” HCA, 240 F.3d at 993. “‘Wrong’ is the label used by our precedent to

describe the conclusion a court reaches when, after reviewing the plan documents

and disputed terms de novo, the court disagrees with the claims administrator’s

plan interpretation.” Id. at 993 n.23. If the court determines that the




                                           8
administrator’s interpretation is right, the inquiry ends, but if it determines that the

interpretation is wrong, the court proceeds to step three. See id. at 993–94.

      In step three, the court decides whether “the claimant has proposed a

reasonable interpretation of the plan.” HCA, 240 F.3d at 994 (internal quotation

marks omitted). If the court concludes that he has, it continues on to step four. In

step four, the court must “determine whether the claims administrator’s wrong

interpretation is nonetheless reasonable.” Id. If it is reasonable, then the

“interpretation is entitled to deference even though the claimant’s interpretation is

also reasonable,” and the court moves to step five. Id.

      Finally, in step five, the court must consider the self-interest of the

administrator. HCA, 240 F.3d at 994. “If no conflict of interest exists, then only

arbitrary and capricious review applies and the claims administrator’s wrong but

reasonable decision will not be found arbitrary and capricious.” Id. The inquiry

ends at that point. Id. If a conflict does exist, then heightened arbitrary and

capricious review applies. Id. “[T]he burden shifts to the claims administrator to

prove that its interpretation of the plan is not tainted by self-interest.” Id. The

claims administrator must show that “its wrong but reasonable interpretation of the

plan benefits the class of participants and beneficiaries.” Id. at 994–95. Even if

the administrator satisfies this burden, the insured may still be entitled to benefits



                                            9
“if he can show by other measures that the administrator’s decision was arbitrary

and capricious.” Id. at 995.

                                          III.

      In reviewing Reliance’s denial of benefits, the district court followed the

analytical process we have just outlined. In step one the court found that because

the MARC Plan required the insured to “submit satisfactory proof of Total

Disability to [Reliance],” it conferred discretion upon Reliance to determine

eligibility for benefits. Therefore, either plain arbitrary and capricious review or

the heightened version of it was appropriate. The court then found that there was a

conflict of interest between Reliance’s profit-making and fiduciary roles, making

heightened arbitrary and capricious the right standard. In doing so, the court relied

upon Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 (11th Cir. 2001),

which involved the same plan language at issue here.

      In step two, the court reviewed de novo Reliance’s interpretation of the

MARC Plan. The court addressed the provision that states that an insured is totally

disabled if “during the Elimination Period, [the] Insured cannot perform each and

every material duty of his/her regular occupation.” The court found that under this

provision, an insured is not totally disabled if he “can perform even one of the

material duties of his or her occupation.”



                                             10
      The court then reviewed de novo the administrative record that was before

Reliance when it denied Tippitt’s claim and subsequent appeals. The court found

that during and after the elimination period, Tippitt “could perform some of the

duties of [his occupation] during the three hours of sedentary work that multiple

members of plaintiff’s medical team, and apparently plaintiff himself, reported that

plaintiff could complete.” The court held that this ability rendered Tippitt

ineligible for benefits regardless of whether the court defined his occupation

according to the Job Analysis form completed by Munich or the DOT job

description used by Reliance. Accordingly, the court held that Reliance’s denial of

benefits “was not ‘wrong,’ but ‘right.’”

      The court ended its inquiry there, at the second step, and did not proceed to

the remaining steps of the analysis. The court determined that Tippitt was not

entitled to benefits and that Reliance had not breached any of the fiduciary duties it

owed him. This appeal followed. Tippitt’s first argument focuses on what the

court did in step one and his other two arguments focus on what the court did in

step two.

                                           IV.

      Tippitt contends that the district court erred when it determined that it should

review Reliance’s decision to deny benefits using the heightened arbitrary and



                                           11
capricious standard. He argues that the district court should have applied de novo

review because the plan’s requirement that an insured “submit[] satisfactory proof

of Total Disability to us” does not grant Reliance discretion, but instead serves as a

promise to pay benefits if certain conditions are met. Reliance and the MARC Plan

contend that heightened arbitrary and capricious review was appropriate because

the plan language does grant Reliance discretion through the “satisfactory . . . to

us” language. In any event, they say, we are bound by our decision in Levinson.

      The plan language in Levinson, like that here, required the insured to

“submit[] satisfactory proof of Total Disability to [Reliance].” Levinson, 245 F.3d

at 1324. Not satisfied with the proof Levinson submitted, the plan administrator

denied benefits, and Levinson filed suit against it. Id. The administrator argued

that its decision was only subject to arbitrary and capricious review, and Levinson

eventually agreed. Id. at 1324–25. The district court, applying arbitrary and

capricious review, granted Levinson’s motion for summary judgment, and the

administrator appealed. Id.

      In step one of our analysis in Levinson, this Court stated that review was to

determine whether the denial was arbitrary and capricious. 245 F.3d at 1325.

Later we noted that because there was a conflict of interest between the

administrator’s fiduciary and profit-making roles, heightened arbitrary and



                                          12
capricious review was proper. Id. at 1326. We are bound by Levinson to apply the

same heightened arbitrary and capricious standard of review in this case.

      Tippitt argues that we should not feel bound to follow Levinson even though

the plan language is identical, because Levinson did not argue for de novo review.

The Levinson opinion, however, does not indicate that the Court meant to assume

away that issue or reserve it for decision in some future case where the standard of

review issue was contested. Instead, the opinion states the standard of review in

terms of a conclusion or holding: “Because the policy gives the administrator

discretion to determine eligibility for benefits, we must determine whether the

administrator’s decision was arbitrary and capricious.” 245 F.3d at 1325.

Tippitt’s argument that we should not be bound by Levinson because this point

was not really argued in that case runs afoul of our decisions that a prior panel

precedent cannot be circumvented or ignored on the basis of arguments not made

to or considered by the prior panel. See Cohen v. Office Depot, Inc., 204 F.3d

1069, 1076 (11th Cir. 2000) (“Unless and until the holding of a prior decision is

overruled by the Supreme Court or by the en banc court, that holding is the law of

this Circuit regardless of what might have happened had other arguments been

made to the panel that decided the issue first.”). Accordingly, under our binding




                                          13
precedent the district court did not err in determining that the appropriate standard

of review is heightened arbitrary and capricious.

                                          V.

      Tippitt contends that the district court erred by defining his “regular

occupation,” for purposes of the plan, through use of a DOT job description that

does not reflect the actual duties he performed in his job at Munich. Even

assuming that the duties listed in the DOT’s description for “manager, computer

operations” were substantially different from those Tippitt actually performed, the

district court did not err. The court did not define Tippitt’s regular occupation

solely with respect to the duties listed in the DOT job description. The court

decided that Tippitt was ineligible for benefits regardless of whether it used

Munich’s Job Analysis form or the DOT job description as a standard. It found

that “[u]nder either standard, plaintiff could perform some of the duties of either

description.” Its decision was not affected by use of the DOT job description.

                                          VI.

      Tippitt contends that the district court erred by interpreting “total disability”

so that an insured is not totally disabled if he can perform any–“even

one”—material duty of his regular occupation.




                                          14
      ERISA does not provide any guidance on how a court should interpret

provisions in an employee welfare benefit plan. See Dixon v. Life Ins. Co. of N.

America, 389 F.3d 1179, 1183 (11th Cir. 2004) (“Although comprehensive in

many respects, ERISA is silent on matters of contract interpretation.”). The federal

courts “have the authority to develop a body of federal common law to govern

issues in ERISA actions not covered by the act itself.” Horton v. Reliance

Standard Life Ins. Co., 141 F.3d 1038, 1041 (11th Cir. 1998) (internal quotation

marks omitted). “When crafting a body of common law, federal courts may look

to state law as a model because of the states’ greater experience in interpreting

insurance contracts and resolving coverage disputes.” Id.; see also Hauser v. Life

Gen. Sec. Ins. Co., 56 F.3d 1330, 1333 (11th Cir. 1995). “To decide whether a

particular rule should become part of ERISA’s common law, courts must examine

whether the rule, if adopted, would further ERISA’s scheme and goals,” which

include: “(1) protection of the interests of employees and their beneficiaries in

employee benefit plans; and (2) uniformity in the administration of employee

benefit plans.” (internal citation omitted). Horton, 141 F.3d at 1041.

      “Under Georgia law, the words used in the [insurance] policy are to be given

their usual and common significance and are to be construed in their ordinary

meaning.” Giddens v. Equitable Life Assurance Soc’y of U.S., 445 F.3d 1286,



                                          15
1292 n.5 (11th Cir. 2006) (internal quotation marks and alteration omitted) (citing

Larson v. Ga. Farm Bureau Mut. Ins. Co., 520 S.E.2d 45, 46 (Ga. Ct. App. 1999)).

A court does not examine “what the insurer intended its words to mean, but rather

what a reasonable person in the insured’s position would understand them to

mean.” W. Pac. Mut. Ins. Co. v. Davies, 601 S.E.2d 363, 368–69 (Ga. Ct. App.

2004) (internal quotation marks omitted). “[A]mbiguity exists if the policy is

susceptible to two or more reasonable interpretations that can fairly be made, and

one of these interpretations results in coverage while the other results in

exclusion.” Shahpazian v. Reliance Standard Life Ins. Co., 388 F. Supp. 2d 1368,

1375 (N.D. Ga. 2005); accord Luton v. Prudential Ins. Co. of Am., 88 F. Supp. 2d

1364, 1370 (S.D. Fla. 2000). If there is no ambiguity and only “one reasonable

construction is possible, the court will enforce the contract as written.” Sapp v.

State Farm Fire & Cas. Co., 486 S.E.2d 71, 73 (Ga. Ct. App. 1997).

      If the plan is ambiguous, under Georgia decisions and our own we must

construe the ambiguities against the drafter, and the claimant’s interpretation is

considered correct. HCA, 240 F.3d at 994 n.24; see Lee v. Blue Cross/Blue Shield

of Ala., 10 F.3d 1547, 1551 (11th Cir. 1994) (“Having determined that the plan is

ambiguous, we hold that application of the rule of contra proferentem is

appropriate in resolving ambiguities in insurance contracts regulated by ERISA.”);



                                          16
see also Florence Nightingale Nursing Serv., Inc. v. Blue Cross/Blue Shield of

Ala., 41 F.3d 1476, 1481 n.4 (11th Cir. 1995) (“Blue Cross’s argument that contra

proferentem should not apply to self-funded ERISA plans is specious. We held in

Lee, 10 F.3d at 1551, that contra proferentem does apply to ERISA plans.”);

Davies, 601 S.E. 2d at 369 (“When the language of an insurance contract is

ambiguous and subject to more than one reasonable construction, the policy must

be construed in the light most favorable to the insured, which provides him with

coverage.”); Erie Indem. Co. v. Lascala, 424 S.E.2d 820, 822 (Ga. Ct. App. 1992)

(“Where an insurance contract is ambiguous or is capable of being construed

variously, it must be construed against the insurer and in favor of the insured.”).

       We begin our interpretation of the MARC Plan with the definition of “total

disability.” An insured who “cannot perform each and every material duty” is one

who cannot perform any duties or one who can perform fewer than all of his

duties.1 The definition of “total disability” does not explicitly provide the time

standard against which an inability to perform a duty is to be measured. Reliance

and the MARC Plan seem to argue that the time standard is “any amount of time.”

We believe, however, that the standard must be the ordinary work period, which

usually is a work day. Many, if not most, job duties exist throughout the work day.


       1
         Whenever we refer to “duties” we are referring to material duties. The immaterial
duties do not matter in this case.

                                              17
In order to perform a job satisfactorily, to carry out its duties, a worker must be

able to perform the tasks it requires from the beginning to the end of the work day.

Otherwise, he cannot perform its tasks or carry out its duties. This is another way

of saying that the duty of a job is to perform its tasks as many times, and as long

throughout the work day, as the job requires.

       Our belief that the time standard applicable to the “cannot perform”

component of the total disability definition is reinforced, and perhaps compelled,

by the combined effect of two other provisions of the plan. One is the non-

equivalence clause of the plan, which provides that “[a]n Insured who is Partially

Disabled will be considered Totally Disabled, except during the Elimination

Period.” The clear and necessary effect of that provision is that anything which fits

within the definition of partial disability cannot be total disability. Otherwise, the

non-equivalence clause would not make any sense. We know then that anything

which fits within the definition of partial disability is not total disability.

       The other provision that reinforces our conclusion is the plan’s definition of

partial disability. It provides that an insured is partially disabled if: “[the] Insured

is capable of performing the material duties of his/her regular occupation on a part-

time basis or some of the material duties on a full-time basis.” We interpret this

provision in the same way that Tippitt does. An insured is partially disabled if he



                                            18
can perform: (1) “all” of the duties of the occupation on a part-time basis; or (2)

some of those duties on a full-time basis. We read the word “all” into the first

clause of the definition because the plan drafters used the limiting word “some” in

the second clause but not in the first. See Mountain Aire Realty, Inc. v. Birdie

White Enters., Inc., 593 S.E.2d 900, 902–03 (Ga. Ct. App. 2004) (“In ascertaining

the intent of the parties, the court should ascertain the parties’ intent after

considering the whole agreement and interpret each of the provisions so as to

harmonize with the others.”); see also S. Trust Ins. Co. v. Dr. T’s Nature Prods.

Co., 584 S.E.2d 34, 35–36 (Ga. Ct. App. 2003); cf. Burlington N. & Santa Fe Ry.

Co. v. White, __ U.S. __, 126 S. Ct. 2405, 2412 (2006) (“We normally presume

that, where words differ as they differ here, Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”) (internal quotation marks

omitted); DIRECTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir. 2004) (“[W]hen

Congress uses different language in similar sections, it intends different

meanings.”) (internal quotation marks omitted).

       As we have said, reading the non-equivalence clause with the definition of

partial disability tells us what total disability is not. If an insured can perform all

of the duties of the occupation for a substantial fraction of the work day, but not all

day long, he can do them only on a part-time basis, which puts his condition within



                                            19
the definition of partial disability. And because that insured is partially disabled,

he is not totally disabled within the meaning of the plan. Likewise, if the insured

can perform some, but not all, of the duties of his occupation for the entire work

day, and during each work day as it comes, he is partially disabled; therefore, he is

not totally disabled within the meaning of the plan.

      The insureds who are too disabled to fit within the partial disability

definition, then, are those who cannot perform all of the duties of the occupation

on a part-time basis and who also cannot perform any of the duties on a full-time

basis. An insured who is so disabled that he cannot perform any duty any of the

time or can perform only some of the duties some of the time is totally disabled.

And when the plan includes within the definition of partial disability, and therefore

excludes from total disability, those who can perform all of the duties of the

occupation “on a part-time basis” we construe it to mean for a substantial part of

the work day, not for some inconsequential fraction. A person who can perform all

the duties of an occupation for only a few minutes a day before passing out cannot

perform them “on a part-time basis” in a way that would be of interest to anyone

other than a law professor. To the extent that the decisions in Carr v. Reliance

Standard Life Ins. Co., 363 F.3d 604, 607 (6th Cir. 2004), and Gallagher v.




                                          20
Reliance Standard Life Ins. Co., 305 F.3d 264, 275 (4th Cir. 2002), are inconsistent

with our decision today, we disagree with them.

                                         VII.

      The district court rested its rejection of Tippitt’s claim on a finding (which

Tippitt does not dispute) that he “could perform some of his duties . . . during the

three hours of sedentary work” he could do each day. The court itself emphasized

“some.” Accepting the factual premise, we cannot accept the legal one which is

that anyone who can perform some of his duties during some of the work day is

partially disabled and therefore not totally disabled. As we have already explained,

only if Tippitt could not perform (during the elimination period) all of his duties

during the three-hour period or some other substantial fraction of the work day

would he be partially disabled and therefore not totally disabled.

      We do not know whether Tippitt could perform all of his duties during the

three-hour period or only some of them. That seems to be disputed and the district

court did not make any findings about it. Nor do we know whether he could

perform any of his duties full-time, because the district court did not address that

question either. We need to remand for those findings, because it is not the role of

appellate courts to make findings of fact. Icicle Seafoods, Inc. v. Worthington, 475

U.S. 709, 714, 106 S. Ct. 1527, 1530 (1986) (“If the Court of Appeals believed that



                                          21
the District Court had failed to make findings of fact essential to a proper

resolution of the legal question, it should have remanded to the District Court to

make those findings. . . . [I]t should not simply have made factual findings on its

own.”); Didie v. Howes, 988 F.2d 1097, 1104 (11th Cir. 1993) (“We . . . are not

factfinders.”); Smith v. Zant, 887 F.2d 1407, 1419 (11th Cir. 1989) (“The role of a

reviewing court is not to . . . reassess the facts but to make sure that the conclusions

derived from the district court’s . . . assessments are judicially sound and supported

by the record.”) (alteration and internal quotation marks omitted).

      Accordingly, we remand to the district court to make additional findings of

fact and to complete the remaining steps of the process, consistent with this

opinion, in order to determine whether Tippitt is totally disabled and thereby

eligible for benefits under the plan.

      REVERSED and REMANDED for further proceedings consistent with this

opinion.




                                           22
