                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 05-16671                   February 27, 2007
                         ________________________           THOMAS K. KAHN
                                                                  CLERK
                    D.C. Docket No. 04-00480-CV-3-CSC

GEORGE HELMS,

                                                            Plaintiff-Appellant,

                                   versus

GENERAL DYNAMICS CORP., a corporation,
THE GENERAL DYNAMICS SHORT TERM DISABILITY PLAN,
a welfare disability plan, et al.

                                                         Defendants-Appellees.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                            (February 27, 2007)

                    ON PETITION FOR REHEARING

Before BIRCH, PRYOR and FAY, Circuit Judges.

BIRCH, Circuit Judge:
      Appellant’s petition for panel rehearing is GRANTED. We VACATE our

prior opinion in this case and substitute the following in its place.

      George Helms appeals the magistrate judge’s entry of judgment in favor of

General Dynamics Corporation (“General Dynamics”) and Aetna Life Insurance

Company (“Aetna”) in his action for a wrongful denial of benefits under the

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.

We hold that Aetna acted arbitrarily and capriciously in denying Helms short-term

disability (“STD”) benefits, that Helms failed to exhaust his administrative

remedies with respect to his long-term disability (“LTD”) claim, and that Helms

has an appropriate remedy under § 502(a)(1)(B). As a result, we REVERSE in

part, AFFIRM in part, and REMAND for proceedings consistent with this opinion.

                                I. BACKGROUND

      Helms worked for General Dynamics as a functional analyst, a job that

required him to work at a desk with a computer. Helms was covered under

General Dynamics’ ERISA-maintained STD and LTD benefit plans, which were

administered by Aetna. The STD plan defines disability as a health condition that

results in one’s being “continuously unable to perform the essential duties of

[one’s] regular occupation in substantially the same manner as [one] did just

before incurring a medically determined physical or mental impairment.” R1, 29-5

                                           2
at 20. The medical proof of disability required that Helms “[p]rovide the Claims

Administrator with information from [his] physician that: -Verifies [his] Disability

and - Explains the nature and extent of [his] Disability.” Id. at 22. Helms was

advised that Aetna could require Helms to submit to an exam by a physician

selected by Aetna, otherwise known as an independent medical exam (“IME”).

      The STD plan provided for two levels of appeal, both with Aetna Disability

Services. If Aetna denied a STD claim it would provide a written explanation that

detailed “[t]he specific reasons for the denial, [t]he specific references in the plan

document to support those reasons, [a] description of additional material or

information [the claimant] could provide to support the claim -- and the reasons

why that information is necessary, and [t]he procedures available for a further

review of [the] claim.” Id. at 28 (emphasis in original).

      On 27 June 2003, Helms applied for and was granted STD benefits from 8

July 2003 through 18 August 2003 in connection with a medical leave for surgery

to repair a torn rotator cuff. Helms’s application listed his other health issues as

high blood pressure, an enlarged prostate, and thyroid problems, but it did not

mention headaches. On 20 August 2003, Dr. Larry W. Epperson, Helms’s

neurologist, submitted an Attending Physician Statement (“APS”) stating that

Helms suffered from chronic headaches. Dr. Epperson first had treated Helms on

                                           3
27 February 2003 for complaints of nausea and daily headaches Helms had

experienced for the several months. Dr. Epperson found the headaches “very

worrisome.” R1, 29-6, at 32.

      In a follow-up visit on 11 March 2003, Helms described his headaches as

constant. Dr. Epperson noted Helms’s seizure in 1996 and that Helms’s headaches

were at the base of his skull and back. A magnetic resonance imaging (“MRI”)

scan of Helms’s brain was normal and an MRI of Helms’s cervical spine revealed

a “small focal disc bulge on the right and right of the midline at C6-C7 with

chronic appearing compression of the superior endplate at T2.” Id. at 27. Dr.

Epperson also changed Helms’s medications because Lorcet Plus was too strong

and Midrin was ineffective. Helms’s neurologist also planned a follow-up in two

months, suggesting Helms call for an update in three weeks if his condition did not

improve.

      Helms returned to Dr. Epperson with chronic headaches on 31 March 2003.

Dr. Epperson’s impression was “[c]hronic headaches, cervical spine, back of the

base of his skull and top of his head with no meningeal signs.” Id. at 29. Dr.

Epperson noted Helms’s history of lymphoma, discontinued Neurontin, and tried

new medications, as well as Lorcet Plus again. Dr. Epperson also planned a




                                         4
follow-up for five to six weeks later and recorded that he was considering a

lumbar puncture.

      Helms returned a little over two weeks later, on 15 April 2003, complaining

of chronic headaches. Dr. Epperson noted that he was “really concerned about

[Helms] in that he has history of lymphoma and has chronic headaches since mid-

February.” Id. at 27. While Helms did not appear ill at the appointment, he

described the headaches as occurring daily, starting at the back and top of his

head. Dr. Epperson made additional changes in medications and observed that

Medrol Dosepak gave Helms significant relief when he was on it for a short period

of time and recommended a follow-up in three to four weeks.

      Dr. Epperson also scheduled a lumbar puncture to rule out lymphoma,

carcinomatous meningitis, or any fungal infection. Approximately one week after

the lumbar puncture, Helms complained of severe spinal headaches. Helms went

to the emergency room and the hospital admitted him for observation and an

epidural spinal blood patch. Dr. Epperson recorded that the blood patch resolved

the spinal headaches but left Helms with a chronic headache in the occipital head

region. Dr. Epperson wrote that Helms might require an occipital nerve block at

his next appointment.




                                         5
      On 8 May 2003, Helms returned to Dr. Epperson for a follow-up. Dr.

Epperson noted that Helms’s headaches were “somewhat improved on Topomax;

but [that] he fe[lt] horrible.” Id. at 24. Helms told Dr. Epperson that he felt

washed-out and fatigued and had difficulty doing his job at work. Dr. Epperson’s

impression was that Helms’s fatigue and difficulty concentrating were side effects

of the Topomax he was taking. As a result, Dr. Epperson tapered Helms off

Topomax “fairly rapidly,” began Helms on Neurontin, and planned a follow-up in

four to five weeks. Id. At the end of his notes Dr. Epperson wrote: “Consider

short-term disability and he may need long-term disability.” Id.

      On 2 June 2003, Helms returned to his neurologist and Dr. Epperson noted:

      Helms thinks he might be a little better. He is now off Paxil and
      Topamax and he feels better just being off those drugs. . . . He is
      very concerned about his work and he states he has difficulty working
      because of headaches and also his medications cause him to be
      sedated and drowsy at times.

Id. at 21. Dr. Epperson’s impression was that Helms’s chronic headaches were

“much improved.” Id. He recommended a follow-up in three to four months and

considered other medications in the future for headache control.

      On 20 August 2003, Dr. Epperson faxed to Aetna an APS that detailed

Helms’s chronic headaches and indicated his opinion that Helms was unable to




                                          6
return to work, but capable of “[s]edentary work activity [as] moderate limitation

of functional capacity.” R1, 29-7 at 9-10.

       On 26 August 2003, registered nurse Lorna Blackmer conducted a review

of the forms submitted for Helms. Nurse Blackmer decided that Helms’s

restrictions on lifting with his right arm were only appropriate through 21

September 2003.

      On 3 September 2003 Helms returned to Dr. Epperson for a follow-up

regarding his chronic headaches and his history of lymphoma. Dr. Epperson wrote

that Helms

      is doing remarkably well with no further headaches. He is also on
      Neurontin 300 mg one q.i.d., Trazodone qhs, Covera 180 qhs, and
      Synthroid. He is retired and is trying to get Disability and I totally
      support him. I have tried him on numerous medications with
      numerous trials in the past, as well.

R1, 29-6 at 19. Under the “Impressions” section Dr. Epperson wrote: “Chronic

headaches, much improved on present regiment. Adverse side effects to Paxil and

Topamax.” Id. Under the “Plan” section, he advised: “1. Continue the above

medications. 2. He may decrease his Neurontin eventually by one every month

until he gets off Neurontin. Furthermore, he can decrease his Methadone . . . if he

would like . . . 3. I support him in his endeavor to retire. 4. Follow-up in 3-4

months.” Id.

                                          7
      On 11 September 2003, Dr. Epperson completed and faxed to Aetna an APS

addressing Helms chronic headaches that noted that Helms’s primary diagnosis

was chronic headaches with a secondary diagnosis of lymphoma. Dr. Epperson

described Helms’s abilities/limitations as, “[n]o ability to work. Severe limitation

of functional capacity; incapable of minimal activity.” Id. at 10. Under the

question “What medical restrictions/limitations are you placing on patient,” Dr.

Epperson concluded “unable to work.” Id.

      Nurse Blackmer conducted another review on 25 September 2003. She

recorded restrictions and limitations (R&Ls) of “no R[eturn]T[o]W[ork].” R1, 29-

12 at 5. The next day, according to Aetna’s notes, Nurse Blackmer’s review

concluded that “[b]ased on lack of clarity of R&Ls and causation of impairment,”

Aetna should request the office visit notes from both Dr. D.D. Thornbury, the

physician Helms saw for his rotator cuff injury, and Dr. Epperson. R1, 29-13 at 1.

On 30 September 2003, Helms called to inquire about the status of his claim and

Aetna told him that the medical records it had received “[were] not enough.” Id.

      On 3 October 2003, Dr. Epperson refaxed his 11 September 2003 APS, this

time with additional comments. Under the heading “Objective findings that

substantiate impairment,” Dr. Epperson recorded that “[p]atient has [headaches]

every day” and was “unable to function.” R1, 29-6 at 12. Helms’s neurologist

                                          8
also indicated that he had tried several medications on Helms. On 6 October 2003

Aetna’s notes reflect that Helms called to check on the status of his claim and told

Aetna that his medications left him in a sedated state, that he could not drive, and

that he had trouble focusing and concentrating.

      Nurse Holly M. Johnson then reviewed Helms’s claim on 8 October 2003.

Aetna’s notes indicated that “R&Ls MD advises no work due to chronic

headaches” and concluded “[t]here [was] not enough objective medical

information to support continued disability.” R1, 29-13 at 3.

      In a 13 October 2003 letter, Aetna advised Helms that his benefits had been

terminated because “Aetna c[ould ]not certify [his] disability because [it did] not

receive[] medical information to show that [he] remain disabled.” R1, 29-4 at 7.

The letter directed Helms to provide additional information if he had medical

information he wanted Aetna to consider.

      In a letter dated 14 October 2003, Dr. Epperson wrote to Aetna:

      Fortunately, we have found a combination that has worked, but it can
      cause mild sedation. He is applying for Disability and I totally
      support him in that endeavor. I do not believe he can function on the
      present medications coupled with his chronic daily headaches . . . .
      He cannot continue to work on medication and with chronic daily
      headaches.

R1, 29-6 at 15.



                                          9
      On 27 October 2003, Nurse Blackmer concluded that Helms’s headaches

were improved, that he was cutting down his medication, and that since he had

worked with headaches while on medications before, she was “unclear as to what

changed” beyond Helms’s rotator cuff repair. R1, 29-13 at 5. She concluded “that

medical does not support ongoing R&Ls . . . [Helms’s] condition is improved so

that his medication is being decreased and eliminated, so if [Helms] worked with

more medication, [it is] reasonable [that Helms] could work now that [his

symptoms] are so much better and medication is increased.” Id.

      On 30 October 2003, Aetna called Helms to explain the claim decision. The

notes stated: “Advised that based on the medical, AP is indicating that [Helms] has

lowered his meds. [Helms] stated that this is untrue, as he is still taking the same

dosages” of medications for his headaches. R1, 29-14 at 1. On that same day,

Aetna sent Helms a letter and Dr. Epperson a fax regarding Aetna’s denial of

Helms’s STD claim. The letter to Helms stated, for a second time, that Aetna

“c[ould ]not certify your disability because we [did] not receive[] medical

information to show that you remain disabled.” R1, 29-4 at 10. Aetna’s 30

October 2003 fax to Dr. Epperson stated that the medical information it had

received did not support Helms’s impairment past 22 September 2003. Aetna




                                          10
requested the office visit notes from April 2003 to present, detailed R&Ls, and the

results of any MRIs, X-rays, or any other tests results.

      On 13 November 2003 Dr. Epperson provided Aetna with his office notes

documenting his treatment of Helms. Nurse Blackner then reviewed Helms’s

claim, noting that “Dr. stated [Helms] is unable to work due to some slight

sedation. However, no new medical given, no R&Ls given.” R1, 29-14 at 2. She

observed that Helms had a history of using “different medications, including

Hydrocodone prior to LDW.” Id. The review continued, concluding, “[b]ased on

no R&Ls, given the fact that [Helms] is able to drive, do machinery, etc. medical

continues to not support impairment.” Id.

      On 19 November 2003, Aetna upheld its termination of benefits in a letter to

Helms, claiming, for the third time, that it “c[ould ]not certify your disability

because we [did] not receive[] medical information that you remain disabled.” R1,

29-4 at 15. Aetna’s 19 November 2003 notes indicated that the “impairment is not

supported past 9/22/03, as medical information does not have any R+L’s.” R1,

29-14 at 2.

      Helms then submitted a written appeal. He argued that he had severe daily

headaches that required strong medication to control and that he felt that

methadone and Neurontin had an adverse effect on his ability to work and perform

                                          11
activities commensurate with his duties as a computer systems analyst. Included

with Helms’s appeal was a letter from Dr. Epperson that stated:

      Mr. Helms suffers from daily chronic headaches of a debilitating
      nature. He is presently taking medication to control the severity of
      the headache episodes. These medications, neurontin and methadone,
      cause sedation interfering with his ability to work or drive a vehicle
      and numerous other daily activities. Mr. Helms is unable to work
      while taking the medications required for his condition. He must
      have the medication to control the pain. Mr. Helms was seen by me
      in my office this date, his condition remains the same and he must
      continue his medication regime in order to control the pain.

R1, 29-7 at 19. Helms also provided a Social Security Administration (“SSA”)

questionnaire with his appeal wherein Helms described some of the daily

difficulties he encountered. He stated that he had tried to refrain from taking

some medication so he could function at work but the intense pain would return

when he omitted medications. Aetna acknowledged receipt of Helms’s appeal

and explained that Helms would receive a written response within 45 days or be

notified if an extension was necessary, and would be told why additional time is

needed. Aetna notified Helms within 45 days that it was extending the appeal

deadline by 45 days.

       Aetna denied Helms’s appeal and concluded that it was correct in its

original decision to terminate benefits. Aetna referenced Helms’s SSA




                                         12
questionnaire wherein Helms wrote that he was not able to drive often and that he

had to lie down several times a day. Aetna concluded:

      [t]his questionnaire provides insight in to the activities Mr. Helms
      may be able to do or not do within the course of the day. It does not
      address any type of job related functions. It does not inquire about
      restrictions and or limitations, which would prevent Mr. Helms from
      returning to his position as a systems analyst.

R1, 29-7 at 12. Aetna’s letter summarized Dr. Epperson’s 14 October 2003

narrative note and concluded that it did not provide “medical information to

substantiate a total disability from work as a systems analyst.” Id. Aetna also

decided that Dr. Epperson’s 25 November 2003 narrative note provided “no new

information to support restrictions and limitations from work.” Id. The letter

continued by stating that at the time Helms submitted his initial claim (relating to

his rotator cuff), he did not mention recurrent headaches. Although Helms was

out of work from 20 April 2003 through 2 May 2003 for recovery from a lumbar

puncture complication, Aetna reasoned that Helms did not specifically mention

severe headaches as a reason for the procedure, rather only “pain.” Aetna’s

analysis concluded that

      Mr. Helms began complaining of severe headaches in February
      2003. He worked, full time while taking multiple medications,
      including a narcotic . . . Dr. Epperson has stated that Mr. Helms
      experiences sedation from his medication, which is why he cannot
      work. The medication Mr. Helms was taking at the onset of

                                         13
       disability was reported . . . to be Synthroid, Flomax and Covera.
       There is no mention of a sedating, narcotic medication. Medication
       he has been taking while out of work is Methadone and Neurontin.
       If Mr. Helms was not on this medication regime at the onset of
       disability in July 2003, and has not worked since this medication was
       prescribed he cannot adequately be evaluated with respect to
       restrictions and limitations in the workplace.

       Therefore, based on our review . . . the medical information does not
       contain any objective conditions, which would support a disability of
       such a severe nature as to preclude him from returning to work.

Id. at 13.

       On 18 May 2004 Helms filed a complaint under 29 U.S.C. § 1132. He

sought STD benefits, LTD benefits, and also equitable relief. The parties filed a

consent to jurisdiction by magistrate judge and filed cross-motions for summary

judgment. After briefing and oral arguments, the magistrate judge granted

Defendants’ motion for summary judgment and denied Helms’s motion for

summary judgment. Helms timely appealed the magistrate judge’s decision.

                         II. STANDARD OF REVIEW

       We review a district court’s grant of summary judgment in an ERISA case

de novo, applying the same legal standards that controlled the district court’s

determination. Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132, 1134

(11th Cir. 2004).




                                         14
      We apply the following procedure in reviewing denials of benefits under

ERISA plans:

     (1) Apply the de novo standard to determine whether the claim
     administrator’s benefits-denial decision is “wrong” (i.e., the court
     disagrees with the administrator’s decision); if it is not, then end the
     inquiry and affirm the decision.

     (2) If the administrator’s decision in fact is “de novo wrong,” then
     determine whether he was vested with discretion in reviewing claims;
     if not, end judicial inquiry and reverse the decision.

     (3) If the administrator’s decision is “de novo wrong” and he was
     vested with discretion in reviewing claims, then determine whether
     “reasonable” grounds supported it (hence, review his decision under
     the more deferential arbitrary and capricious standard).

     (4) If no reasonable grounds exist, then end the inquiry and reverse
     the administrator’s decision; if reasonable grounds exist, then
     determine if he operated under a conflict of interest.

     (5) If there is no conflict, then end the inquiry and affirm the decision.

     (6) If there is a conflict of interest, then apply heightened arbitrary
     and capricious review to the decision to affirm or deny it.

Id. at 1137-38 (footnotes omitted).

      We follow this approach in reviewing both an administrator’s interpretation

of a plan and its factual determinations. See id. at 1134 n.3. Here, the parties

agree that Aetna was vested with discretion and that, therefore, the arbitrary and




                                         15
capricious standard applies here in some form. They disagree, however, as to

whether the heightened standard applies.

       Helms argues that Aetna is operating under a conflict of interest between

its fiduciary role and its profit-making role because, although Aetna does not pay

benefits to STD plan participants out of its own assets, Helms asserts that Aetna

pays LTD plan participants out of its own assets. Therefore, Helms claims, Aetna

has a financial incentive to deny STD claims, thereby reducing the amount of

STD claims that eventually become LTD claims. We need not decide that issue

today because, as we discuss below, we hold that Aetna’s decision to deny STD

benefits does not survive even the more deferential arbitrary and capricious

standard (as opposed to a heightened arbitrary and capricious standard of review

when a conflict of interest is present). See id. at 1138 (stating that “[i]f no

reasonable grounds exist, then end the inquiry and reverse the administrator’s

decision; if reasonable grounds do exist, then determine if he operated under a

conflict of interest . . . .”).

                                  III. DISCUSSION

A. STD Benefits Claim

       In determining whether Aetna was de novo wrong and unreasonable in

terminating Helms’s STD benefits, we begin with the plan itself, since an ERISA

                                          16
plan administrator must “discharge his duties with respect to a plan . . . in

accordance with the documents and instruments governing the plan insofar as

such documents and instruments are consistent with the provisions of [ERISA].”

29 U.S.C. § 1104(a)(1)(D). Under Aetna’s plan section labeled “Medical Proof of

Disability,” Helms was required to provide information from his physician that

verified and explained the nature and extent of his disability. Helms argues that

he has met Aetna’s STD requirements and that not only was Aetna’s procedural

handling of his STD claim flawed, but that Aetna’s substantive reasoning for the

denial of his STD claim was faulty. For the following reasons, we agree.

      1. Aetna’s Procedural Handling of Helms’s STD Claim

      Aetna never subjected the medical evidence provided by Dr. Epperson to

peer review, nor did Aetna ever subject Helms to an independent medical exam

(“IME”). We have been critical of a nurse’s review when a meaningful review

dictated assessment of specialized tests beyond a nurse’s training. See Levinson

v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1326-27 (11th Cir. 2001).

Here, while no reviews of specialized tests were necessarily required, the STD

benefits hinged on a diagnosis that even Nurse Blackmer admitted was subjective.

Aetna was presented with no evidence that suggested that Helms was a

malingerer; conversely, the record was replete with numerous office visit notes

                                         17
and narratives from Dr. Epperson expressing worry over Helms’s condition and

crediting his complaints of debilitating chronic headaches.

           In Godfrey v. Bellsouth Telecommunications, Inc., a nurse practitioner

never bothered to gather the treating doctor’s notes and test results. 89 F.3d 755,

758-59 (11th Cir. 1996). Here, Aetna’s notes concluded that Aetna should

request the office visit notes from both Drs. Thornbury and Epperson. Similar to

the facts in Godfrey, Aetna’s records do not reflect that Aetna ever followed

through on its notation that it “[was] necessary” to gather all of Dr. Thornbury’s

office notes and test results. See id.1

           Given the circumstances, Aetna’s reliance on a registered nurse’s review of

an admittedly subjective diagnosis without so much as a peer review or an IME

was wrong and unreasonable. See Godfrey, 89 F.3d at 758-759 (holding that the

record supported the district court’s finding that defendant’s physicians arbitrarily

rejected clear medical evidence that plaintiff submitted and ignored the

medication that claimant had to take on a daily basis without examining her

themselves or seeking the treatment notes of her doctors); see also Kunin v.


       1
         Admittedly, Dr. Thornbury treated Helms’s for his rotator cuff injury, not his headaches.
Nevertheless, the record fails to indicate that Aetna followed through on its own suggested
course of action laid out in its internal notes. Although not directly related to Helms’s headaches,
the complete orthopedic records could have indicated whether Dr. Thornbury noted any signs of
malingering.

                                                 18
Benefit Trust Life Ins. Co., 910 F.2d 534, 538 (9th Cir. 1990) (holding that an

ERISA administrator’s inadequate investigation and reliance on non-experts in

the field failed to provide a reasonable basis for the administrator’s

determination).2 Like our sister circuit, we believe that “[a]lthough in some

contexts it may not be arbitrary and capricious to require clinical evidence of the

etiology of the allegedly disabling symptoms in order to verify that there is no

malingering, we conclude that it was arbitrary and capricious to require such

evidence in the context of this [p]lan” and Helms’s case. See Mitchell v. Eastman

Kodak Co., 113 F.3d 433, 442-43 (3d Cir. 1997).

           Aetna’s own procedures set forth two appeals levels Helms needed to

exhaust before bringing suit in either state or federal court. At appeal “Level 1,”

Aetna’s “decision w[ould] be forwarded to [the claimant] in writing and w[ould]

include the specific reasons and plan references on which the decision is based.”

R1, 29-5 at 29. At appeal “Level 2,” Aetna’s procedures state that it would notify

a claimant of Aetna’s decision within 45 days of Aetna’s receipt of the request for

a Level 2 review. If Aetna needed additional time, it would notify the claimant

“during that 45-day period of why additional time is needed.” Id.


       2
        We are not espousing a rule that qualified nurses can never review claims, but in
circumstances such as these, with highly subjective determinations, a peer review or an IME was
warranted.

                                               19
           Aetna was wrong in failing to communicate sufficiently its justifications

for both the various initial denials Helms received and the extension Aetna

granted itself in ultimately denying Helms’s Level 2 Appeal. The three identical,

initial denial letters lack the required specificity. Aetna’s letters from 13 and 30

October 2003 and 19 November 2003 all stated that Aetna “c[ould ]not certify

[Helms’s] disability because [they] ha[d] not received medical information to

show that [Helms] remain[ed] disabled.” R1, 29-4 at 7, 10, 15. Internally,

however, even before the 13 October 2003 denial, Aetna’s reviewer concluded

that Helms lacked “enough objective medical information” to support continuing

his STD benefits, R1, 29-13 at 3, and that Helms failed to present sufficient (or

any) restrictions and limitations.3 Nowhere in Aetna’s first three denial letters did

Aetna explain its conclusion regarding objective evidence. Furthermore, Aetna

failed to identify any specific examples of objective evidence that Helms could

have submitted in support of his STD claim, despite Aetna’s own policy that

stated that denied claimants would receive “[a] description of additional material

or information [they] could provide to support the claim -- and the reasons why


       3
          Aetna’s internal notes vacillated between the conclusion that the restrictions and
limitations presented were insufficient and the conclusion that Helms failed to present any
restrictions and limitations. Compare R1, 29-13 at 3 (noting “R&Ls MD advises no work due to
chronic headaches”) with R1, 29-14 at 2 (concluding “[b]ased on no R&Ls, given the fact that
[Helms] is able to drive, do machinery, etc. medical continues to not support impairment”).

                                             20
that information [wa]s necessary.” R1, 29-5 at 28.4 In fact, on Aetna’s own APS

form under the question that asks for “Objective findings that substantiate

impairment,” Aetna gives examples that include “current laboratory, physical

and/or mental status examination, and other testing.” See, e.g., R1, 29-6 at 12

(emphasis added). Not only did Aetna repeatedly neglect to inform Helms that it

required “objective” evidence, but, based on its own forms, Dr. Epperson’s

examinations of Helms should have qualified as “objective findings.” Nor do the

three initial denial letters specifically reference a need to provide or clarify

Helms’s restrictions and limitations. Under the plain language of its plan, Aetna

was wrong to send Helms these terse letters. See Mitchell, 113 F.3d at 442 (“The

Administrator’s denial letters are terse, and we are not altogether certain of their

meaning.”). No reasonable interpretation of Aetna’s plan documents permitted




       4
          Given that Aetna has discretion in terms of what it considers adequate “proof” of
disability, we cannot say that it is always unreasonable for Aetna to demand objective evidence.
Accord Wangenstein v. Equifax, Inc., 191 Fed. Appx. 905, 913-14 (11th Cir. 2006)
(unpublished) (“[G]iven that KNS has discretion in terms of what it considers adequate ‘proof’ of
continuing disability, we cannot say that it is unreasonable for KNS to demand objective
evidence.”). We note, however, that this case is distinguishable from Wangenstein on its facts.
As an initial matter, the plan administrator in Wangenstein had four doctors conduct five
independent paper peer review consultations and a neurologist conduct an IME, neither of which
was performed here. Id. at *2-4. There, the neurologists recommended specific additional
documentation and procedures that would be helpful. Id. at *8. Here, in contrast, Aetna
repeatedly gave no indication to Helms as to what it needed, even as it internally noted that it
lacked objective evidence and sufficient restrictions and limitations.

                                               21
Aetna to send boilerplate letters that did not sufficiently disclose Aetna’s reasons

for the denial of Helms’s STD claim.

      At appeal “Level 2,” Aetna’s procedures stated that it would notify

claimants of Aetna’s decision within 45 days of Aetna’s receipt of the request for

a Level 2 review. Aetna promised that all extension notices for reviewing

disability claims would explain: “- The standards used in determining whether a

participant is entitled to a benefit, - The unresolved issues that prevent a decision

on the claim, and - The additional information needed to resolve those issues.”

R1, 29-5 at 28. With regard to Level 2 appeals specifically, Aetna claimed that if

it needed additional time, it would notify the claimant “during that 45-day period

of why additional time is needed.” Id. at 29. Aetna’s letter notifying Helms that

Aetna was extending the appeal deadline failed to give any reason as to why the

additional time was needed to reach a conclusion. No reasonable interpretation of

the plan allows Aetna simply to ignore the substance of its own notification

requirement.

      2. Aetna’s Analysis of Helms’s STD Claim

      In addition to asserting that Aetna’s claims procedures were inadequate,

Helms also argues that Aetna’s substantive analysis of his STD claim was flawed.

We agree. In reviewing the record as a whole and taking the evidence in the light

                                         22
most favorable to Aetna, we find no sufficiently contradictory evidence from Dr.

Epperson regarding Helms’s impairment. Aetna and the dissent try to paint Dr.

Epperson’s opinions as inconsistent, but we find that the portions of the medical

evidence that cast Helms as improving are qualified by the undisputed fact that

his improvement was dependent on medication that left him sedated and

interfered with his daily functions. It is true that Dr. Epperson recorded an

improvement in Helms’s headaches in his office visit notes of 3 September 2003,

but Dr. Epperson’s notes from that day also recommended that Helms continue

his medications and suggested that he could decrease his medication dosage at his

own discretion.5 Dr. Epperson’s later APS, and his letters of 14 October 2003

and 25 November 2003, further clarified and contextualized his office visit note

from 3 September 2003. Stated simply, Helms’s condition “improved” only

through medication that controlled the severity of the headaches but left Helms

sedated and interfered with his ability to work and drive. R1, 29-7 at 19. At no

point did Dr. Epperson vacillate regarding his ultimate conclusion that Helms

qualified for disability benefits. Aetna essentially pulled two positive sentences

out of Dr. Epperson’s 3 September 2003 notes and discredited or ignored the



       5
        Aetna’s records reflect that Helms notified Aetna that he had not, in fact, reduced his
medication after the 3 September 2003 visit with Dr. Epperson.

                                                23
undisputed evidence consisting of the neurologists’ numerous office visit notes,

APSs, and narratives that stated that Helms’s condition did not continue to

improve unless on sedating medication and that Helms was unable to work in his

condition. A doctor’s treatment records will often note improving and

deteriorating conditions, especially in situations such as these, wherein a doctor

has tried different combinations of medicines with various results. Under the

dissent’s logic, any noted improvement, however excised from the context of the

unrefuted medical conclusion that Helms warranted disability, must result in a

triable question of fact. Viewing the evidence in the light most favorable to

Aetna still leaves Aetna unable to refute the fact that Helms’s improved status at

the time was a result of a regiment of drugs that left him sedated and, in the

opinion of the only doctor involved in Helms’s review, unable to work. If Aetna

believed that there was a contradiction in the Dr. Epperson’s notes, it could have

had conducted a peer review of Helms’s file and it could have ordered an IME to

gain additional perspective, especially since Nurse Blackmer herself admitted that

“[m]igraine is a subjective diagnosis.” R2, 44-2 at 85.6

       6
        Furthermore, Aetna’s argument on appeal that Dr. Epperson merely stated that Helms’s
medication could “cause mild sedation” but did not claim that the medication actually caused
Helms sedation is not only post hoc reasoning, but also wrong. See R1, 29-7 at 26. Dr.
Epperson noted in a 25 November 2003 letter submitted with Helms’s appeal that the
medications “cause[d] sedation interfering with his ability to work or drive a vehicle and
numerous other daily activities.” R1, 29-7 at 19. Even Aetna’s own notes acknowledge that

                                             24
           To conclude, as Aetna did, that Helms provided insufficient restrictions or

limitations, or even no restrictions and limitations at all, is wrong because it is

contrary to the undisputed evidence. In light of its own forms, Aetna

unreasonably construed what qualified as “restrictions and limitations.” While

Aetna was not satisfied with Dr. Epperson’s restrictions and limitations, Aetna’s

APS form only gives pithy examples of restrictions and limitations, suggesting:

“Activities of Daily Living, Driving, Lifting, Pulling, Pushing, and Amounts,

etc.” R1, 29-6 at 12. Dr. Epperson stated that Helms had difficulty driving and

working. Aetna’s 18 August 2003 notes confirmed that Helms had restrictions

regarding driving and working with machinery. R1, 29-12 at 2; 29-13 at 2. Also,

Helms presented evidence, such as his questionnaire, wherein Helms indicated

that he had trouble driving, among other things, and frequently needed to lay

down and rest throughout the day.7 Aetna’s appeal denial letter admitted that




“[m]eds leave him in a sedated state, can’t drive, and has trouble focusing/concentrating.” R1,
29-13 at 2.
       7
         The dissent asserts that the fact that Helms performed his work throughout the period of
treatment is evidence that allows a reasonable inference that Helms’s headaches did not render
him disabled. We have considered similar arguments in prior cases and noted doubt that an
applicant’s status as a full-time employee constitutes evidence that he was able to perform the
material duties of his occupation on a full-time basis. Levinson, 245 F.3d at 1327 n.6
(“[Applicant] ‘gave it a go’ and her attempt to work does not forever bar her collection of
sickness disability benefits.’” (citing Marecek v. BellSouth Telecomms., Inc., 49 F.3d 702, 706
(11th Cir. 1995)).

                                                25
Helms’s questionnaire “provide[d] insight [into] the activities of Mr. Helms may

be able to do or not do within the course of the day.” R1, 29-7 at 12. In the very

next line, however, Aetna then concluded that the questionnaire “d[id] not inquire

about restrictions and limitations” that prevented Helms from returning to work.

Id. It is baffling how Aetna could concede that Helms had difficulty driving and

needed to lay down occasionally and then go on to conclude in the very next line

that Helms failed to submit any restrictions and limitations.

      Aetna’s reliance on Black & Decker Disability Plan v. Nord, 538 U.S. 822,

123 S. Ct. 1965 (2003), is unconvincing. Nord instructs us that we may not

impose on plan administrators “a discrete burden of explanation when they credit

reliable evidence that conflicts with a treating physician’s evaluation,” 538 U.S.

at 834, 123 S. Ct. at 1972, but here there was no evidence other than that of

Helms’s treating physician Dr. Epperson and Helms himself. Put another way,

this is not a case wherein the plan administrator refused to credit the opinions of

doctors that supported disability but instead accorded greater weight to

conflicting opinions of doctors that did not support disability. See, e.g.,

Wangenstein, 191 Fed. Appx. at 912-13 (upholding a plan administrator’s

weighing of multiple neurologists’ examinations and reviews but ultimately

crediting neurologists that did not support a finding of disability). With only Dr.

                                         26
Epperson’s medical evaluation in the form of his office notes, test results, APSs,

and narratives, Aetna excised narrow snippets of Dr. Epperson’s notes, while it

discredited or ignored whole tracts of his medical evaluation that supported

Helms’s STD claim, all without a peer review or an IME. Aetna’s review in this

case was malignant at worst, and arbitrary at best. See Nord, 538 U.S. at 834, 123

S. Ct. at 1972 (“plan administrators . . . may not arbitrarily refuse to credit a

claimant’s reliable evidence, including the opinions of a treating physician.”).

           Here, Aetna possessed only a scintilla of evidence pulled out of context

against the extensive documentation of Helms’s chronic headaches and powerful

medication. While Aetna seized a line in Dr. Epperson’s September 2003 records

that noted Helms’s condition greatly improved, that evidence alone does not

create a triable issue of fact when it is undisputed that the remark was written in

the context of the drugs Helms continued to take--drugs that left him mildly

sedated and interfered with numerous daily activities.8 In a letter dated October

2003, Dr. Epperson clarified that while Helms’s condition had improved, it was

still his opinion that Helms warranted disability benefits as a result of his


       8
          The dissent’s suggestion that “[t]hings changed only after Helms underwent surgery to
repair a torn rotator cuff on July 8” is simply a mischaracterization of the record. Helms had
sought treatment for headaches since February 2003 and in May 2003 Dr. Epperson wrote, with
regard to Helms’s headaches: “Consider short-term disability and he may need long-term
disability.” R1, 29-6 at 24.

                                               27
decreased functionality due to present medications and lingering headaches.9 If

Aetna was dissatisfied with the evidence of disability and restrictions and

limitations submitted by Helms and Dr. Epperson, it was entitled to require Helms

undergo an IME or to submit Helms’s file to a peer review. Had Aetna done so,

Aetna would have been entitled to discount Dr. Epperson’s opinion in favor of a

contrary opinion produced by an IME or a peer review. See House v. Paul

Revere Life Ins. Co., 241 F.3d 1045, 1048 (8th Cir. 2001) (“If Paul Revere was

dissatisfied with the medical evidence submitted by Nolewajka, it was entitled to

require House to submit to an [IME]. Had it done so, Paul Revere would have

been entitled to discount Nolewajka’s opinion entirely in favor of a contrary

opinion produced by the independent examiner.”).

           We find it is unreasonable, and therefore arbitrary and capricious, for Aetna

to have repeatedly sheathed its true justifications in boilerplate language in its

first three denial letters to Helms. Aetna was also unreasonable to have ignored

submitted restrictions and limitations and excised only snippets of Dr. Epperson’s

evaluations without the context of the sedating medications in discrediting or


       9
         Furthermore, any intimation by Aetna or the dissent that Dr. Epperson somehow
improperly “promise[d]” that he would support Helms in violation of his ethical duties as a
physician is completely unsupported in the record. See Scotto v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998) (holding that the party opposing summary judgment “may not rely on conclusory
allegations or unsubstantiated speculation”).

                                              28
ignoring overwhelming portions of Dr. Epperson’s medical evidence that

supported Helms’s STD claim. Finally, Aetna was unreasonable when it failed to

initiate a peer review or an IME that could have provided additional perspective

on this admittedly subjective diagnosis. To be clear, we are not holding that

Aetna must always have a doctor perform a claims review or even that a failure to

perform an IME is necessarily arbitrary and capricious. Rather, we find that, in

this case, Aetna’s myopic and flawed reasoning and its procedural failures to

properly inform Helms of the specific reasons for his denial in a timely fashion,

coupled with the lack of an IME of an admittedly subjective condition, is

arbitrary and capricious. Similar to the conclusion reached by the district court in

Levinson, “there was absolutely no justification for [Aetna’s] denial of [Helms’s]

benefits claim. [Aetna] did not have a doctor review [Helms’s] condition and

presented no evidence to [support] its findings that [Helms] was not entitled to

benefits. In essence, there was no disputed material issue of fact in [Aetna’s]

determination, which is why summary judgment [for Helms is] appropriate.” See

Levinson v. Reliance Standard Life Ins. Co., 2000 WL 193623, at *5 (S.D. Fla.

Jan. 5, 2000) (unpublished), affirmed, 245 F.3d at 1331.10


       10
           The dissent cites non-binding caselaw that suggests a remand to the plan administrator
may be the appropriate course of action. We disagree. As the majority in Levinson held, we too
find that “[Aetna] had more than adequate opportunities to establish an administrative record

                                                29
B. Long Term Disability Benefits Claim

        We agree with the magistrate judge that nothing in either the STD or LTD

plans required Helms to exhaust his STD benefits before being eligible for LTD

benefits. Since Helms never applied for LTD benefits, he has failed to exhaust

his administrative remedies regarding his claim for LTD. See Perrino v. S. Bell

Tel. & Tel. Co., 209 F.3d 1309, 1315 (11th Cir. 2000). We note, however, that

the magistrate judge’s dismissal should have been without prejudice. See

Ravencraft v. UNUM Life Ins. Co. of Am., 212 F.3d 341, 344 (6th Cir. 2000)

(vacating summary judgment to defendant UNUM and remanding with

instructions to dismiss without prejudice); see also Bickley v. Caremark Rx, Inc.,

461 F.3d 1325, 1330 (11th Cir. 2006) (affirming the district court’s dismissal of

beneficiary’s complaint without prejudice). As a result, we vacate and remand

this case to the district court to dismiss the asserted cause of action without

prejudice.

C. Equitable Relief Claim

        Helms has stated a cause of action and has an appropriate remedy under §

502(a)(1)(B). As a result, we affirm the magistrate judge’s dismissal of Helms’s



containing evidence contradicting [Helms’s] evidence pointing to disability . . . . [Aetna] did not
do this.” See 245 F.3d at 1328.

                                                 30
claim for ERISA § 502(a)(3) equitable relief. See Jones v. Am. Gen. Life &

Accident Ins. Co., 370 F.3d 1065, 1072-73 (11th Cir. 2004) (“[A]n ERISA

plaintiff with an ‘adequate remedy’ under Section 502(a)(1)(B) could not

alternatively plead and proceed under Section 502(a)(3).”).

                               III. CONCLUSION

      Aetna’s procedural handling of Helms’s STD claim was faulty and its

substantive reasoning both wrong and unreasonable. Accordingly, we conclude

that Aetna was arbitrary and capricious in terminating Helms’s short-term

disability benefits. We REVERSE the decision of the district court magistrate

judge with respect to Helms’s short-term disability benefits determination,

REVERSE the district court magistrate judge with respect to Helm’s long-term

disability benefits claim on the basis that the dismissal should have been without

prejudice and AFFIRM the district court magistrate judge with respect to

Helms’s claim for equitable relief, and hereby REMAND to the district court

magistrate judge with instructions to enter a final judgment consistent with this

opinion and determine the amount of damages.




                                         31
PRYOR, Circuit Judge, concurring in part and dissenting in part:

      I agree with the majority that Helms failed to exhaust his claim for long-

term disability benefits and that Helms failed to state a claim for equitable relief,

but I respectfully dissent from the majority’s decision to reverse the grant of

summary judgment on Helms’s claim for short-term disability benefits.

      For Helms to be entitled to summary judgment on his claim for short-term

disability benefits, we must conclude that Helms’s evidence proves, with all

reasonable inferences drawn in favor of Aetna, that Helms is “continuously

unable to perform the essential duties of [his] regular occupation in substantially

the same manner as [he] did just before incurring a medically determined physical

or mental impairment . . . with any adjustments that the Company makes to those

responsibilities.” Definition of Disability, 2003 STD Plan at 2. “If the movant

bears the burden of proof,” as Helms does here, he “must establish that there is no

genuine issue of material fact as to any element [of his claim].” In’l Stamp Art,

Inc. v. U.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006). This burden is

compounded when we apply a deferential arbitrary and capricious standard of

review to the determination of the plan administrator. Helms has not satisfied this

burden.




                                          32
      Consider the following time line. On February 27, 2003, Helms saw Dr.

Epperson and complained of daily headaches “for the past several months.” Dr.

Epperson ordered several tests, prescribed Neurontin, Hydrocodone, and

Topomax, and told Helms to return in a few weeks. Dr. Epperson noted that

Helms was “alert and oriented” with a “normal attention span and concentration.”

In April, Dr. Epperson expressed his concern for Helms but noted that “[Helms]

does not appear ill presently.” Dr. Epperson did not suggest that Helms was

disabled, and Helms did not suggest that he could not work because of his

headaches. On May 8, 2003, Dr. Epperson noted that Helms’s headaches were

“somewhat improved” but that he “has difficulty doing his job at work” because

Topomax made him drowsy. Again, no one said Helms was disabled. On June 2,

Dr. Epperson noted that Helms’s headaches were “much improved” and that he

felt better after stopping Topomax. Dr. Epperson scheduled the next appointment

for three or four months instead of three or four weeks. Throughout this period of

treatment, Helms performed his work and did not allege that he was disabled by

his headaches. All of this evidence allows a reasonable inference that Helms’s

headaches did not render him disabled.

      Things changed only after Helms underwent surgery to repair a torn rotator

cuff on July 8. Although the majority suggests that this statement is a


                                         33
“mischaracterization of the record,” I disagree. Following that shoulder surgery,

Helms sought and obtained disability benefits, but those benefits were unrelated

to his migraine headaches. Only after Helms left work and received these short-

term benefits did he suggest to Dr. Epperson that his headaches made working

impossible and only then did Dr. Epperson begin to assert confidently that Helms

was “completely unable to work.” Not only did things change, but the change

was largely unexplained.

      While Helms was on disability leave for the repair of his torn rotator cuff,

Dr. Epperson filed a physician statement, based on an otherwise unrecorded

August 15 office visit, that noted Helms could perform sedentary work but left

blank the space to describe a patient’s restrictions and limitations. On September

3, Helms returned to Dr. Epperson. Dr. Epperson noted that Helms was “doing

remarkably well with no further headaches” and could decrease his medication

until he was completely off Neurontin. Dr. Epperson also noted that Helms “is

retired and trying to get Disability” and “I totally support him in his endeavor to

retire.” To make good on his promise of “total[] support,” Dr. Epperson sent

several letters to Aetna. First, on September 11, he submitted a new physician

statement that inexplicably contradicted his earlier statement that Helms could

perform sedentary work and stated instead, without explanation, that Helms was


                                         34
completely “unable to work.” This statement was also inconsistent with Dr.

Epperson’s notes about the visit on September 3, which described Helms as

“doing remarkably well with no further headaches” and “much improved on

present regimen.” Second, after Helms’s claim was denied, Dr. Epperson sent

another statement and a letter that reasserted that Helms was “unable to work”

because of his headaches. Dr. Epperson sent this statement without any

intervening office visit. On November 25, Dr. Epperson finally saw Helms again

and, that same day, sent another letter to Aetna asserting, in conclusory terms,

that Helms was totally unable to work because his headache medication left him

sedated. Notwithstanding the suggestion of the majority, I cannot say that this

evidence supports a reasonable inference that Dr. Epperson “violat[ed] . . . his

ethical duties as a physician.” I can say that this record allows a reasonable

inference that Dr. Epperson reached his opinion that Helms was completely

“unable to work” because he had promised to support Helms’s desire to retire, not

because Helms’s condition had worsened.

      Helms offers nothing more to support his application. Helms wrote on a

form that, while he could perform household chores, he had difficulty driving and

concentrating. Helms never explained why he could not perform his work if

given reasonable accommodations. Helms also never offered evidence of any


                                         35
change in his medical condition following the September 3 visit when Dr.

Epperson described him as “doing remarkably well with no further headaches.”

Although the majority notes that Helms asserted that his medication “mildly

sedated” him, Dr. Epperson only asserted “sedation” as a basis for disability after

first asserting no basis for disability and then asserting pain from headaches as a

basis for disability. At no time did Helms provide enough evidence to support a

conclusion that he was disabled under the terms of the plan.

      Although Dr. Epperson’s diagnosis of chronic headaches is unrebutted, his

assertion that Helms is “disabled” is a legal opinion, not a medical one. Shaw v.

Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1285 (11th Cir. 2003) (“[T]he question

of whether [a claimant] is ‘totally disabled’ is a mixed one, involving issues of

both plan interpretation and fact.”). Because Dr. Epperson never identified what

Helms could and could not do, the record does not contain the evidence necessary

to conclude that Helms could not do his job. In fact, the record contains ample

evidence, such as Dr. Epperson’s notes, his first physician’s statement, and

Helms’s ability to work through his headaches and Topomax, that compels the

opposite conclusion.

      This appeal is absolutely not like Levinson. In that case, a doctor gave a

diagnosis of a debilitating heart illness, supported his diagnosis with

                                         36
echocardiograms and other evidence, and explained how the diagnosis rendered

Levinson unable to function at work. A nurse disagreed with the doctor’s

diagnosis of a heart condition and determined that the claimant was asymptomatic

based on his own reading of the echocardiograms. We held that the insurance

company could not credit the nurse, who had no expertise in this field and lacked

the training to evaluate the medical evidence, against the doctor’s diagnosis. We

explained that the insurance company should have had another doctor examine

the claimant if the company wanted to dispute the medical diagnosis. After the

nurse’s diagnosis was disregarded, only the doctor’s diagnosis remained and

summary judgment was appropriate for the claimant. In contrast with Levinson,

Helms offered a doctor’s opinions and notes that are internally inconsistent,

conclusory, and do not require the legal conclusion that Helms is disabled. Any

layperson (a nurse, a claims administrator, a federal judge, or reasonable juror)

could find them insufficient to prove that Helms meets the plan’s definition of

disability.

       In short, this appeal is not a case of Aetna “rebutting” Helms’s expert

evidence with a nurse’s opinion, but of Aetna concluding that Helms’s evidence

did not prove his claim of disability. All we need to do is read the file. After all,




                                         37
Helms actually performed the duties of his job during the period that he suffered

from the worst headaches and while he was drowsy from Topomax.

      Because I can arrive at this conclusion without any medical expertise, it is

difficult for me to understand how the majority’s criticism of “a nurse’s review”

is different from “a rule that qualified nurses can never review claims” or a rule

that an IME is always required. Perhaps, the majority’s rule is that a qualified

nurse may review a claim but can never deny it? The problem for Helms, as I see

it, is not that he failed to provide objective evidence of his medical condition but

that the objective evidence he provided—doctor’s notes, doctor’s opinions,

medication dosages, work history, etc.—was internally inconsistent, conclusory,

and tended to undermine his claim.

      If Aetna “sheathed its true justification [for the denial] in boilerplate

language” as the majority suggests, then the majority is rightly concerned about

its handling of Helms’s case. Still, “[a] decision to deny benefits is arbitrary and

capricious [only] if no reasonable basis exists for the decision.” Shannon v. Jack

Eckerd Corp., 113 F.3d 208, 210 (11th Cir. 1997). Once sued, an administrator is

not limited to the reason for denial that it gave the applicant but may argue any

reasonable basis for its decision based on the record before it. “We cannot over

emphasize the importance of the discretion afforded a claims administrator; the


                                         38
underlying premise of arbitrary and capricious, rather than de novo, review is that

a court defers to the discretion afforded the claims administrator under the terms

of the plan.” HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240

F.3d 982, 994 (11th Cir. 2001).

      If all Helms wanted from Aetna was a reasoned explanation for its denial of

benefits or for Aetna to order an IME, then Helms could ask us to order the

district court to remand this claim to Aetna. See, e.g, Miller v. United Welfare

Fund, 72 F.3d 1066, 1074 (2d Cir. 1995) (ordering the district court to remand to

the administrator because the “present record is incomplete and we therefore

cannot conclude that there is no possible evidence that could support a denial of

benefits”); Rakoczy v. Travelers Ins. Co., 914 F. Supp. 166 (E.D. Mich. 1996)

(remanding to administrator “because it failed to adequately state the reasons for

denial or describe additional materials that plaintiff could adduce to perfect her

claim”). ERISA charges the administrative fiduciary and not the federal courts

with providing an initial “full and fair review” of benefit claims, 29 U.S.C §

1133; “[t]he remedy when [an ERISA administrator] fails to make adequate

findings or to explain its grounds adequately is to send the case back [to the

administrator] for further findings or explanation.” Gallo v. Amoco Corp., 102

F.3d 918 (7th Cir. 1996). The remedy is not to change the summary judgment

                                         39
standard in Helms’s favor and place the burden on Aetna to disprove Helms’s

claim to benefits. “[T]hat the plan administrator failed to provide the adequate

procedures does not mean that the claimant is automatically entitled to benefits

[because] such a holding might provide the claimant ‘with an economic windfall

should she be determined not disabled upon a proper reconsideration.’” Hackett

v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771, 776 (7th Cir.

2003).

       I find nothing in either ERISA or this plan that would require Aetna to

order another doctor to examine Helms before denying benefits. The plan

affirmatively places the burden on Helms to provide Aetna information that

“verifies . . . and explains the nature and extent of [his] disability.” Although

Aetna could have given Helms a better explanation for the denial of his

application for benefits, Aetna should not be criticized for having a medical

professional—a nurse—review Helms’s medical records. Indeed, a claims

administrator with no medical training could have determined that Helms’s

medical records did not “verify” or “explain” his disability, but actually cast

doubt on it. Like the magistrate judge, I think even a federal judge should be able

to see that.




                                         40
