      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2         McDonald v. Western-Southern                  No. 02-3053
   ELECTRONIC CITATION: 2003 FED App. 0369P (6th Cir.)             Life Ins. Co., et al.
               File Name: 03a0369p.06
                                                             Before: MOORE and GILMAN, Circuit Judges; MILLS,
                                                                             District Judge.*
UNITED STATES COURT OF APPEALS
                                                                               _________________
             FOR THE SIXTH CIRCUIT
               _________________                                                     COUNSEL

JAMES MCDONALD ,                 X                       ARGUED: Aaron P. Rosenfeld, VORYS, SATER,
           Plaintiff-Appellee, -                         SEYMOUR & PEASE, Columbus, Ohio, for Appellants.
                                  -                      Tony C. Merry, PALMER VOLKEMA THOMAS,
                                  -  No. 02-3053         Columbus, Ohio, for Appellee. ON BRIEF: Aaron P.
          v.                      -                      Rosenfeld, David A. Campbell, VORYS, SATER,
                                   >                     SEYMOUR & PEASE, Columbus, Ohio, for Appellants.
                                  ,
WESTERN -SOUTHERN LIFE                                   Tony C. Merry, PALMER VOLKEMA THOMAS,
                                  -
INSURANCE COMPANY ;                                      Columbus, Ohio, for Appellee.
                                  -
WESTERN -SOUTHERN LIFE            -                                            _________________
DISABILITY PLAN; SECURITY         -
PLAN COMMITTEE OF THE             -                                                OPINION
                                  -                                            _________________
WESTERN -SOUTHERN LIFE
                                  -
DISABILITY PLAN,                  -                        RICHARD MILLS, District Judge. James McDonald
      Defendants-Appellants. -                           worked for Western-Southern Life Insurance Company for
                                  -                      nearly twenty-one years before he began receiving long-term
                                 N                       disability (“LTD”) benefits from Western-Southern Life
     Appeal from the United States District Court        Insurance Company’s Flexible Benefits Plan due to his severe
    for the Southern District of Ohio at Columbus.       depression and his aggressive personality disorder.1
   No. 98-00414—John D. Holschuh, District Judge.
                                                           After paying LTD benefits for over seven years, Western-
             Argued: September 9, 2003                   Southern terminated McDonald’s LTD benefits after it
                                                         concluded that he was no longer disabled from performing
        Decided and Filed: October 20, 2003              any and every occupation, business, or employment for

                                                               *
                                                              The H onorable Richard Mills, United States District Judge for the
                                                         Central District of Illinois, sitting by designation.

                                                               1
                                                              W e will refer to Defendants-Appellants collectively as “Western-
                                                         Southern” for ease of reference.

                           1
No. 02-3053             McDonald v. Western-Southern           3    4        McDonald v. Western-Southern                     No. 02-3053
                                   Life Ins. Co., et al.                     Life Ins. Co., et al.

wages, compensation, or profit as was required by the terms             Act. Once a Covered Employee is receiving such
of the plan in order to be considered disabled and in order to          benefits his period of Long-Term Disability shall be
receive LTD benefits.                                                   deemed to include the waiting period for such benefits.
                                                                        After the covered Employee has completed 5
   After the Appeals Committee affirmed Western-Southern’s              uninterrupted Years of Employment, Long-Term
decision to terminate McDonald’s LTD benefits, McDonald                 Disabled shall mean the complete and continuous
filed suit in federal district court seeking the reinstatement of       incapacity of the Covered Employee to engage in any
his LTD benefits, which he claimed were denied in violation             and every occupation, business or employment for
of his rights under the Employee Retirement Income Security             wages, compensation or profit.
Act (“ERISA”). 29 U.S.C. § 1001 et seq. ERISA. After
reviewing the administrative record, the district judge             Pursuant to the terms of the plan, a covered employee has a
concluded that Western-Southern’s decision to terminate             continuing obligation to furnish proof of his long-term
McDonald’s LTD benefits was arbitrary and capricious, and           disability, to be examined in order to verify his long-term
therefore, he ordered the reinstatement of McDonald’s LTD           disability, and to provide any release required by the plan.
benefits.
                                                                      In the fall of 1988, McDonald began to experience severe
  For the following reasons, we AFFIRM the judgment of              depression. On October 26, 1988, Western-Southern awarded
the district court.                                                 McDonald short-term disability benefits due to his
                                                                    depression. On August 23, 1989, the Social Security
                     I. BACKGROUND                                  Administration determined that McDonald was totally and
                                                                    permanently disabled. On January 12, 1990, Western-
  James McDonald began working for Western-Southern on              Southern notified McDonald that it had approved his
October 11, 1976. His last position with the company was as         application for LTD benefits, to be effective January 26,
a district sales manager in charge of the Columbus, Ohio,           1990, based upon his severe depression and his aggressive
office. As an employee of Western-Southern, McDonald was            personality disorder.
a participant in the Western and Southern Life Insurance
Company Flexible Benefits Plan. The Plan provided LTD                 On October 30, 1996, pursuant to a periodic evaluation of
benefits for covered employees who were determined to               his continued eligibility for LTD benefits, Western-Southern
suffer from a long-term disability or who were determined to        asked McDonald to provide information to it relating to his
be long-term disabled. “Long-Term Disability or Long-Term           disability and to sign an authorization for the release of his
Disabled” is defined by the terms of the plan as:                   medical records.2 Upon receipt of this material, Western-
  Long-Term Disability or Long-Term Disabled shall mean
  until the Covered Employee has completed 5                             2
                                                                         Througho ut his disab ility, McD onald has been under the care of Dr.
  uninterrupted Years of Employment a disablement                   Hubert T. Goodman, a psychiatrist, and D r. Kent G. H amd orf, Ph.D., a
  resulting from sickness or accidental bodily injury of            psychologist. In addition, McDona ld has appeared for an independent
  such a nature that the disabled Covered Employee is               medical examination, pursuant to Western-Southern’s requests, on
  receiving disability benefits under the Social Security           July 10, 1989 , with Dr. Michael Murphy, a psychiatrist, who gave
                                                                    McDonald a Minnesota Multiphasic Personality Inventory (“MMP I”), and
No. 02-3053                  McDonald v. Western-Southern                5    6         McDonald v. Western-Southern                      No. 02-3053
                                        Life Ins. Co., et al.                           Life Ins. Co., et al.

Southern’s medical consultants believed that some of                          loss. Based upon his examination and interview of
McDonald’s activities, which were noted in his medical                        McDonald, Dr. Clary rendered the following conclusion:
records, were inconsistent with a diagnosis of major
depression.3      Accordingly, Western-Southern asked                             Mr. McDonald would be able to relate satisfactorily with
McDonald to submit to an independent medical examination                          supervisors and co-workers. He would be able to
in order to determine whether he remained eligible to receive                     understand and follow instructions in a competitive
LTD benefits.                                                                     setting. He would be able to maintain attention and
                                                                                  attendance for a reasonable period of time and would
   On May 2, 1997, Dr. Richard M. Clary, a psychiatrist,                          perform routine repetitive tasks without undue
examined McDonald.4 Dr. Clary’s examination consisted of                          supervision. He would be able to exercise acceptable
a standard psychiatric evaluation, the MMPI-2 psychological                       judgment concerning work functions and would have
test, and a clinical interview of McDonald. Thereafter, Dr.                       some difficulty understanding the stress and pressure
Clary submitted a report to Western-Southern which                                associated with day to day work activities. He might be
contained his evaluation of McDonald’s condition and the                          able to return to work in a very low stress environment
results of McDonald’s MMPI-2.                                                     on a limited trial basis.
   Specifically, Dr. Clary’s report indicated that the results of                On May 19, 1997, Western-Southern sent McDonald a
McDonald’s MMPI-2: (1) were consistent with symptoms of                       letter informing him that his LTD benefits would be
depression and showed an over-sensitivity to criticism;                       terminated effective June 30, 1997. In this letter, Western-
(2) displayed an underlying hostility as well as evidence of                  Southern advised McDonald that, based upon Dr. Goodman’s
anger and resentment; and (3) indicated paranoid tendencies                   medical records and Dr. Clary’s conclusions, it was
but did not show any paranoid delusions or psychotic                          terminating his LTD benefits because it now appeared that he
thinking. Dr. Clary diagnosed McDonald as having                              could engage in an occupation for wages, and thus, he no
dysthymic disorder, a dependent personality, possible                         longer met the definition of “Long-Term Disability or Long-
paranoid personality, macular degeneration of the left eye,                   Term Disabled” as defined by the terms of the plan.5
decreased vision in his right eye, and high frequency hearing
                                                                                   5
                                                                                       Spe cifically, W estern-S outhern wro te:

                                                                                   To be considered totally disabled, you must be unable to perform any
on Ju ly 25, 1994 , with Dr. Jero ld Altm an, a psychiatrist.                      gainful emp loyme nt. This requirement is set forth in the enclosed
                                                                                   cop y of Sec tion 2.2 7 of the official plan document.
    3
      Spe cifically, Western-Southern noted that McD onald had been                In reviewing your file, particular attentio n was p aid to the most
playing bridge for points, golfing, boating, and going on cru ises.                recent medical reports covering your cond ition. This included,
    4
                                                                                   a copy of Dr. Goodman’s medical records and the results of the
      Western-Southern hired International Claims Specialist, a third party        medical examination completed at our request by Dr. Clary on
administrator, to select an independent medical examiner for McDonald.             May 2, 199 7. Based upon Dr. Goodm an’s medical records and
International Claims Specialist selected Dr. Clary without any input from          the findings of Dr. Clary, it appears that you are not disabled
W estern-Southern.                                                                 from performing any occupation. It is our decision that you d id
No. 02-3053                 McDonald v. Western-Southern                 7    8        McDonald v. Western-Southern                       No. 02-3053
                                       Life Ins. Co., et al.                           Life Ins. Co., et al.

Thereafter, Western-Southern offered McDonald a position,                     chief legal counsel and a member of the Appeals Committee),
but he refused it.6                                                           Dean Vonderheide (who was Western-Southern’s director of
                                                                              benefits), and Megan Ratchford (who was Western-
  On June 4, 1997, McDonald, through counsel, filed an                        Southern’s nurse coordinator). This telephone conversation
administrative appeal of Western-Southern’s decision to                       was audio taped.8 At the end of this telephone conversation,
terminate his LTD benefits. As part of his appeal, McDonald                   Wuebbling asked Dr. Clary to submit a second letter
presented new evidence which included affidavits from Dr.                     discussing the issues raised during their telephone
Goodman, Dr. Hamdorf, and Mr. Eichenbaum, McDonald’s                          conversation.
bridge coach. Therein, both Dr. Goodman and Dr. Hamdorf
opined that McDonald is totally disabled from engaging in                       On December 17, 1997, Dr. Clary submitted an addendum
any work for profit. In his affidavit, Mr. Eichenbaum testified               to his initial report. In this addendum, Dr. Clary found that,
that McDonald is a poor bridge player and that, based upon                    contrary to Dr. Goodman’s and Dr. Hamdorf’s opinions and
his observations of McDonald’s bridge playing skills, he                      despite McDonald’s poor bridge playing skills, McDonald
believes that McDonald is totally disabled from working.7                     was capable of returning to work. Specifically, Dr. Clary
                                                                              found:
  Upon receipt and review of the evidence which McDonald
submitted as part of his administrative appeal, Western-                          In my opinion, Mr. McDonald is not suffering from any
Southern telephonically contacted Dr. Clary in order to                           psychiatric or psychological impairment that is severe
discuss the issues raised by McDonald’s new evidence and in                       enough to prevent him from returning to work but he, in
order to have Dr. Clary clarify his previous findings and                         fact, does not want to return to work.
conclusions. Participating in this telephone call with Dr.
Clary were Don Wuebbling (who was Western-Southern’s                          On January 2, 1998, Western-Southern informed McDonald
                                                                              that his administrative appeal was denied.
                                                                                 On April 17, 1998, McDonald filed a Complaint (which he
    not qualify at this time for long-term disability benefits because        later amended) in federal district court against Western-
    it appears you could eng age in an occupation for w ages.                 Southern, alleging that it had wrongfully terminated his LTD
                                                                              benefits in violation of his rights under ERISA. Specifically,
(emphasis in original).                                                       McDonald alleged three causes of action against Western-
    6                                                                         Southern: (1) a claim to recover benefits under ERISA, 29
      McD onald disputes Western-Southern’s assertion that it made him        U.S.C. § 1132(a)(1)(B); (2) a claim for breach of fiduciary
an offer of employment after it terminated his LTD benefits; rather,
McDonald claims that W estern-S outhern simp ly made a gratuitous offer       duty under ERISA, 29 U.S.C. § 1109 and § 1132(a)(3); and
to interview him knowing that there were no positio ns available to which     (3) a claim for intentional denial of benefits under ERISA, 29
he could have returned given his limitations.

    7
      McDonald offered Mr. Eichenbaum’s affidavit because Dr. Clary’s              8
findings were based, in part, on the fact that McDonald regularly played            The audio tape of this telephone conversation was later transcribed,
bridge for points, and Dr. Clary opined that this activity was inconsistent   was disclosed to McDonald during discovery, and was provided to the
with McDonald’s disability claim.                                             district court as part of the parties’ cross-motions for summ ary jud gment.
No. 02-3053             McDonald v. Western-Southern          9    10       McDonald v. Western-Southern                       No. 02-3053
                                   Life Ins. Co., et al.                    Life Ins. Co., et al.

U.S.C. § 1140 and 1132(a)(3). At the conclusion of the             and, therefore, not disabled. On January 4, 2002, Western-
discovery period established by the district court, McDonald       Southern filed a timely notice of appeal from the district
and Western-Southern filed cross-motions for summary               court’s order.9
judgment.
                                                                                             II. DISCUSSION
  On December 14, 2001, the district court entered an order
granting in part and denying in part both parties’ motions for        The sole issue which the Court must decide in this appeal
summary judgment. Specifically, the district court held that       is whether or not the district court erred in holding that
Western-Southern’s decision to terminate McDonald’s LTD            Western-Southern’s decision to terminate McDonald’s LTD
benefits was arbitrary and capricious because Western-             benefits was arbitrary and capricious. We find that the district
Southern could not offer a reasoned explanation, based upon        court did not err in so holding.
the evidence in the administrative record, for finding that
McDonald was able to engage in gainful employment and,               A. ARGUMENTS
thereby, rendering him ineligible for LTD benefits under the
plan. In reaching this conclusion, the district court noted the      1.     Western-Southern
unanimity of the opinions of Dr. Goodman and Dr. Hamdorf
regarding McDonald’s disability, found that Dr. Clary’s               Western-Southern claims that there are two issues which
initial report was an insufficient basis upon which to             this Court must address in order to resolve this appeal. The
terminate McDonald’s LTD benefits because Dr. Clary                first issue is whether Western-Southern substantially
merely stated that McDonald might be able to return to work        complied with ERISA’s procedural requirements, and if not,
in a very low stress environment on a limited trial basis, and     whether the substantive remedy imposed by the district court
held that Dr. Clary’s supplemental report should be given          was proper. Western-Southern argues that the district court’s
“very little weight” because it was radically different from his   order should be reversed because the district court
initial report and because it was rendered only after an           erroneously concluded that it had failed to comply with
ex parte telephone conference with Western-Southern’s              ERISA’s procedural requirements in terminating McDonald’s
representatives. Accordingly, the district court entered           LTD benefits, and thus, the district court improperly granted
judgment in McDonald’s favor and against Western-Southern          a substantive remedy to McDonald as a result of this alleged
on his claim to recover benefits and ordered the reinstatement     procedural defect. Specifically, Western-Southern asserts that
of McDonald’s LTD benefits.                                        the district court erred in holding that the telephone call
                                                                   between members of its Appeals Committee and Dr. Clary
   As for McDonald’s two other claims, the district court          was improper and constituted a “procedural defect” because
found against McDonald and in Western-Southern’s favor.
Specifically, the district court held that McDonald’s breach of
                                                                        9
fiduciary duty claim was barred because it was redundant to              On February 20, 2002, the district court denied McDonald’s motion
his claim for denial of benefits, and the district court found     for attorney’s fees and nontaxable costs but granted his motion to amend
that McDonald’s claim for intentional denial of benefits failed    the judgment to include an award for prejudgm ent interest. Mc Do nald
                                                                   does not challenge this order by the district court on appeal, nor has he
because McDonald presented no evidence that Dr. Clary was          appealed the district court’s ruling against him with regard to his claim for
biased or predisposed to concluding that he was able to work       breach o f fiduciary duty or his claim for intentional denial of benefits.
No. 02-3053            McDonald v. Western-Southern         11    12     McDonald v. Western-Southern               No. 02-3053
                                  Life Ins. Co., et al.                  Life Ins. Co., et al.

neither McDonald nor his counsel were included in the             claims that the district court had no basis to disregard Dr.
telephone call. Based upon this finding of an alleged             Clary’s supplemental report.
procedural defect, Western-Southern contends that the district
court improperly disregarded a highly relevant portion of the       Finally, Western-Southern argues that, even assuming
administrative record, i.e., Dr. Clary’s supplemental report.     arguendo that a procedural defect exists, the remedy of
                                                                  wholly discounting Dr. Clary’s supplemental report is
  Western-Southern argues that it provided McDonald with          contrary to Sixth Circuit precedent. See Id. at 807 (holding
a full and fair review of the record on his administrative        that “[g]enerally, the courts have recognized in ERISA cases
appeal and that the procedures which occurred in this case        that procedural violations entail substantive remedies only
substantially complied with the requirements of 29 U.S.C.         when some useful purpose would be served.”).
§ 1133. Western-Southern asserts that, contrary to the district
court’s characterization, there was nothing improper about its      The second issue that Western-Southern claims must be
employees contacting Dr. Clary for a clarification of his         resolved in this appeal is whether the district court erred in
initial report. Western-Southern contends that ERISA’s            holding that its decision to terminate McDonald’s LTD
claims procedures are not adversarial or “trial-like” as          benefits was arbitrary and capricious. Given the plan’s
described by the district court; on the contrary, ERISA’s         definition of long-term disability or long-term disabled as the
claims procedures are designed to be an inexpensive,              incapacity to engage in any and every occupation for wages,
expeditious, and non-adversarial method of claims settlement.     given Dr. Clary’s opinion that McDonald is not suffering
Thus, Western-Southern asserts that the district court erred in   from a condition which prevents his return to work, and given
failing to fully consider Dr. Clary’s supplemental report         Dr. Goodman’s medical reports which indicate that
because this Court has adopted a rule of substantial              McDonald is playing bridge for points, golfing, boating, and
compliance under § 1133. See Kent v. United of Omaha Life         going on vacations, Western-Southern contends that it would
Ins. Co., 96 F.3d 803, 808 (6th Cir. 1996)(holding “that when     defy logic to affirm the district court’s decision because it is
claim communications as a whole are sufficient to fulfill the     possible to offer a reasoned explanation, based upon the
purposes of Section 1133 the claim decision will be upheld        administrative record, for the termination of McDonald’s
even if a particular communication does not meet those            LTD benefits. Accordingly, Western-Southern asks the Court
requirements.”).                                                  to reverse the district court’s order and to remand this case
                                                                  with directions to the district court to enter judgment in its
   Furthermore, Western-Southern argues that its ERISA            favor.
fiduciary obligations and the terms of the plan itself required
it to investigate McDonald’s claims on appeal. Contrary to          2.   McDonald
the district court’s conclusions, Western-Southern contends
that Dr. Clary’s initial report is not in conflict with his          McDonald concedes that the district court correctly found
supplemental report. In both reports, Dr. Clary concludes that    “arbitrary and capricious” to be the appropriate standard of
McDonald is not disabled, as that term is defined by the plan,    review because the terms of the plan give the plan
and his supplemental report merely explains whatever              administrator the discretionary authority to determine
ambiguity exists in his initial report. Thus, Western-Southern    eligibility for benefits and to construe the terms of the plan.
                                                                  However, McDonald argues that the district court’s order
No. 02-3053             McDonald v. Western-Southern         13    14   McDonald v. Western-Southern                No. 02-3053
                                   Life Ins. Co., et al.                Life Ins. Co., et al.

should be affirmed because the district court also correctly       supplement contradicted Dr. Clary’s initial opinion and
found that Western-Southern’s decision to terminate his LTD        because the only event which triggered the change in Dr.
benefits was arbitrary and capricious given the administrative     Clary’s opinion was a telephone call from members of
record. McDonald claims that the evidence overwhelmingly           Western-Southern’s appeals committee.           Under these
establishes that he is totally disabled (as defined by the terms   circumstances, McDonald argues that the district court
of the plan) and that Western-Southern had no reasonable           correctly found Western-Southern’s decision to terminate his
basis for determining otherwise.                                   LTD benefits to be arbitrary and capricious, and thus, this
                                                                   Court should affirm the district court’s decision.
  McDonald asserts that the medical evidence indicates that
he has had a mental illness since 1989, that his condition has       B. ANALYSIS
not improved over time, that his condition is not likely to
improve, and that his treating physicians believe him to be          We have explained:
disabled. In fact, McDonald notes that even Dr. Clary
believed that more treatment with his psychologist would be          As a general principle of ERISA law, federal courts
unlikely to result in any improvement or change in his               review a plan administrator’s denial of benefits de novo,
condition.                                                           “unless the benefit plan gives the plan administrator
                                                                     discretionary authority to determine eligibility for
   Moreover, McDonald asserts that, other than Dr. Clary’s           benefits or to construe the terms of the plan.” Wilkins v.
supplemental report, there is no evidence in the administrative      Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.
record to indicate that there has been a change in his               1998)(citing Firestone Tire & Rubber Co. v. Bruch, 489
condition, nor has any new medical evidence been presented           U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed.2d 80 (1989)).
since Western-Southern initially determined him to be                When a plan administrator has discretionary authority to
disabled which would support a conclusion that he is now no          determine benefits, we will review a decision to deny
longer disabled. The Social Security Administration has              benefits under “the highly deferential arbitrary and
concluded that he is disabled, his treating physicians and the       capricious standard of review.” Yeager v. Reliance
independent medical examiners (save Dr. Clary) have found            Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir. 1996).
him to be disabled, and his MMPI and MMPI-2 tests support
a finding of disability.                                           Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir.
                                                                   2001). “[T]he arbitrary and capricious standard is the least
   Finally, McDonald argues that the district court correctly      demanding form of judicial review of administrative action.
discounted Dr. Clary’s supplemental report. Contrary to            When applying the arbitrary and capricious standard, the
Western-Southern’s characterization of the facts, McDonald         Court must decide whether the plan administrator’s decision
claims that the district court did not refuse to consider Dr.      was rational in light of the plan’s provisions. Stated
Clary’s supplemental report due to any “procedural                 differently, when it is possible to offer a reasoned
irregularity” in the manner in which it was obtained, nor did      explanation, based on the evidence, for a particular outcome,
it impose any “substantive remedy” as a result of this             that outcome is not arbitrary or capricious.” Williams v.
irregularity. Rather, the district court simply found that the     International Paper Co., 227 F.3d 706, 712 (6th Cir.
report should be given “ very little weight” because the           2000)(internal citations and quotations omitted).
No. 02-3053                 McDonald v. Western-Southern              15     16    McDonald v. Western-Southern                 No. 02-3053
                                       Life Ins. Co., et al.                       Life Ins. Co., et al.

   Generally, when a plan administrator chooses to rely upon                     The medical evidence establishes that McDonald’s
the medical opinion of one doctor over that of another in                    diagnosis and condition have remain unchanged since he was
determining whether a claimant is entitled to ERISA benefits,                first diagnosed with severe depression and aggressive
the plan administrator’s decision cannot be said to have been                personality disorder in the late 1980's and was awarded LTD
arbitrary and capricious because it would be possible to offer               benefits by Western-Southern. As noted supra, the results of
a reasoned explanation, based upon the evidence, for the plan                his MMPI-2 in 1997 are substantially similar to the results of
administrator’s decision.10 See Abnathya v. Hoffmann-                        his 1989 MMPI, and even Dr. Clary admitted that more
LaRoche, Inc., 2 F.3d 40, 47 (3d Cir. 1993)(holding that a                   treatment with his psychologist would be unlikely to result in
plan administrator may rely upon a single medical opinion                    any improvement or change in McDonald’s condition. Both
finding that an employee is not disabled); see also Donato v.                Dr. Goodman and Dr. Hamdorf have unequivocally and
Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir.                       repeatedly opined that, based upon the medical evidence and
1994)(upholding a plan administrator’s denial of benefits                    their treatment of him, McDonald is totally incapable of
where a psychiatrist found the employee to be “severely                      returning to work due to his mental condition. See Hoover v.
depressed,” there being insufficient evidence to “support the                Provident Life and Accident Ins. Co., 290 F.3d 801, 809 (6th
conclusion that [the plaintiff’s] depression, regardless of                  Cir. 2002)(applying a de novo standard of review in finding
treatment, would constitute a total disability” and upholding                that “Provident relied on the IME performed by Dr. Roseman
plan administrator’s denial of claim where independent                       and the review of Hoover’s medical records by Provident’s
medical consultant’s opinion was contrary to plaintiff’s                     in-house physicians . . . . As pointed out by the district court,
doctor’s opinion); see also Birdsell v. United Parcel Serv. of               although Dr. Roseman’s assessment did not totally endorse
Am., 94 F.3d 1130, 1133 (8th Cir. 1996)(holding that a plan                  the assessment of Hoover’s treating physician, Dr. Vinson, he
administrator’s decision to deny benefits was not arbitrary or               did not refute it. The evidence presented in the administrative
capricious simply because the plan administrator adopted one                 record did not support the denial of benefits when only
of two competing views).                                                     Provident’s physicians, who had not examined Hoover,
                                                                             disagreed with the treating physicians. Under these
  Under these circumstances, however, the district court did                 circumstances, the district court’s decision to reverse
not err in refusing to defer to Western-Southern’s reliance                  Provident’s denial of residual benefits to Hoover was correct
upon Dr. Clary’s opinion in terminating McDonald’s LTD                       . . . .”).
benefits or in finding Western-Southern’s decision to be
arbitrary and capricious.                                                      In addition, two independent medical examiners questioned
                                                                             McDonald’s ability to return to work. In 1989, Dr. Murphy
                                                                             opined that McDonald may be able to return to work but only
                                                                             under careful supervision of his therapist. In 1994, Dr.
                                                                             Altman opined that McDonald could not return to his usual
    10
       In Black & Decke r Disability Plan v. Nord, ___ U.S. ___, 123 S.      occupation. Dr. Altman also noted that McDonald’s severe
Ct. 1965 (2003), the United States Supreme Court held “that plan             personality disorder prevented him from progressing and that,
administrators are not obliged to accord special deference to the opinions
of treating physicians” and “that courts have no warrant to order
application of a treating physician rule to employee benefit claims made
under ERISA . . . .” Id. at 1966, 1969.
No. 02-3053                  McDonald v. Western-Southern                17     18     McDonald v. Western-Southern                        No. 02-3053
                                        Life Ins. Co., et al.                          Life Ins. Co., et al.

because he has long since made any progress which he is                            Second, in his initial report, Dr. Clary merely opined that
going to make, therapy would only be supportive for him.11                      McDonald might be able to return to work under certain
                                                                                limited circumstances. The mere possibility that a participant
  What remains are the initial and supplemental reports of Dr.                  in an ERISA plan might be able to return to some type of
Clary. As noted supra, in his initial report, Dr. Clary opined:                 gainful employment, in light of overwhelming evidence to the
                                                                                contrary, is an insufficient basis upon which to support a plan
  Mr. McDonald would be able to relate satisfactorily with                      administrator’s decision to deny that participant’s claim for
  supervisors and co-workers. He would be able to                               LTD benefits. See Mein v. Pool Co. Disabled Int’l Employee
  understand and follow instructions in a competitive                           Long Term Disability Benefit Plan, 989 F. Supp. 1337, 1350
  setting. He would be able to maintain attention and                           (D. Colo. 1998)(holding that a plan administrator’s decision
  attendance for a reasonable period of time and perform                        to deny ERISA benefits was arbitrary and capricious where it
  routine repetitive tasks without undue supervision. He                        was based upon a physician’s opinion that the claimant may
  would be able to exercise acceptable judgment                                 be capable of some sedentary work); see also Norris v.
  concerning work functions and would have some                                 Citibank, N.A. Disability Plan, 308 F.3d 880, 883-84 (8th Cir.
  difficulty withstanding stress and pressures associated                       2002)(quoting Fletcher- Merrit v. NorAm Energy Corp., 250
  with day to day work. He might be able to return to                           F.3d 1174, 1179 (8th Cir. 2001)(holding that “‘[s]ubstantial
  work in a very low stress environment on a limited trial                      evidence is more than a mere scintilla. It means such relevant
  basis.                                                                        evidence as a reasonable mind might accept as adequate to
                                                                                support a conclusion. Both the quantity and quality of
   We believe that Dr. Clary’s initial report was an insufficient               evidence may be considered.’”); but see Miller v.
basis upon which to determine that McDonald could engage                        Metropolitan Life Ins. Co., 925 F.2d 979, 985 (6th Cir.
in an occupation for wages. First, Dr. Clary’s opinion (which                   1991)(holding that “Plaintiff makes much of the fact that in
was contained within his initial report) regarding whether                      the narrative portion of his report, Dr. Murthi stated that he
McDonald was disabled was ambiguous at best. The best                           recommended a return to work on a trial basis. . . . Even
evidence of this ambiguity lies in the fact that Western-                       though Dr. Murthi recommended work only on a trial basis,
Southern had to contact Dr. Clary in order to have him clarify                  we do not believe Metropolitan’s action in terminating
his report.12


    11
      Apparently, W estern-Southern took no action with re gard to              peo ple a whole lot, but – but do a lot of things. And we were a little
McDonald’s LT D b enefits after it received Dr. Murp hy’s and Dr.               uncertain in that towards the end of your letter (unintelligible) indicates
Altman’s repo rts.                                                              that – or he indicates some hesitancy about his being able to work, or at
    12
                                                                                least that’s the wa y we’re re ading it and maybe that’s not the way you
       During W estern-S outhern’s telephone conference with Dr. Clary,         intended it – to read. But towards the end (unintelligible) saying that he
Wuebbling said: “And we went through your evaluation of his condition           might be able to return to work in a very low-stress environment on a
(unintelligible) make a decision about the status of disability benefits, and   limited trial basis, which suggests that maybe he could n’t return to work
it kind o f looks, going through the – the evaluation, is though he was         or couldn’t work and that (unintelligible) seems sort of (unintelligible)
doing an awful lot of things that are consisten t with som eone who could       what you were saying in the earlier part of the letter, and we were
function pretty we ll in a working environment. Ma ybe no t interact with       wondering if we were reading it right, interpreting it right or what?”
No. 02-3053             McDonald v. Western-Southern         19    20   McDonald v. Western-Southern               No. 02-3053
                                   Life Ins. Co., et al.                Life Ins. Co., et al.

benefits was inconsistent with the scheme as set forth in the      telephone contact from Western-Southern. See EEOC v. UPS,
Plan.”)(emphasis in original).                                     149 F. Supp. 2d 1115, 1139 (N.D. Cal. 2000)(finding that the
                                                                   defendant’s principal expert witness was not credible because
  Likewise, we believe that Dr. Clary’s supplemental report        the changes made to his draft expert report were all made at
was an insufficient basis upon which to determine that             the suggestion of defense counsel, and thus, “[i]n context, it
McDonald could engage in an occupation for wages. In his           seems clear that [the expert] lost his independence and
supplemental report, Dr. Clary was much more forceful in his       objectivity. He simply became part of the UPS advocacy
conclusion that McDonald was able to engage in gainful             team.”). Although Dr. Clary opined that McDonald could
employment. In fact, Dr. Clary went so far as to accuse            return to work, he did not say what kind of work he could
McDonald of malingering in his ability to return to work:          perform. See Quinn v. Blue Cross and Blue Shield Ass’n, 161
                                                                   F.3d 472, 476 (7th Cir. 1998)(“At her deposition, however,
  In my medical opinion, Mr. McDonald is not suffering             Calhoon admitted that she did not know what Quinn’s job
  from any psychiatric or psychological impairment that is         duties entailed, what her exertional requirements were, any
  severe enough to prevent him from returning to work but          training and experience she possessed, or any transferable
  he, in fact, does not want to return to work.                    skills she may have obtained. Calhoon simply based her
                                                                   opinion on her own notion of what a payroll accounts
  Although the district court found that there was no evidence     assistant does. This, without more, is not enough. We agree
of bias by Dr. Clary and although there was nothing untoward       that Calhoon was under no obligation to undergo a full-blown
about Western-Southern contacting Dr. Clary in order to have       vocational evaluation of Quinn’s job, but she was under a
him clarify his initial report, it is noteworthy that Dr. Clary    duty to make a reasonable inquiry into the types of skills
became more definite in his opinion only after he was              Quinn possesses and whether those skills may be used at
contacted by Western-Southern. In his supplemental report,         another job that can pay her the same salary range as her job
Dr. Clary did not change his diagnosis of McDonald, did not        with HCSC.”); see also VanderKlok v. Provident Life and
modify the results of McDonald’s MMPI-2, or alter his belief       Accident Ins. Co., 956 F.2d 610, 614-15 (6th Cir. 1992)
that therapy would be of little use to McDonald. Moreover,         (quoting Torix v. Ball Corp., 862 F.2d 1428, 1431 (10th Cir.
he did not re-examine McDonald, nor did he receive any new         1988)(“the phrase ‘prevented from engaging in every business
medical evidence or reports upon which to base his clarified       or occupation’ [in an ERISA plan] cannot be construed so
conclusion. In fact, the only new medical evidence submitted       narrowly that an individual must be utterly helpless to be
after Dr. Clary’s initial report was reports from Dr. Goodman      considered disabled and that nominal employment, such as
and Dr. Hamdorf in which they reiterated their opinions that       selling peanuts or pencils which would only yield a pittance,
McDonald was disabled and which attempted to rebut Dr.             does not constitute a ‘business or occupation.’ Instead, a
Clary’s conclusions contained within Dr. Clary’s initial           claimant's entitlement to payments based on a claim of ‘total
report.
  Therefore, we agree with the district court that Dr. Clary’s
supplemental report should be discounted. Dr. Clary’s
supplemental report was significantly different than his initial
report without any justification for the change, other than the
No. 02-3053                 McDonald v. Western-Southern               21     22   McDonald v. Western-Southern                No. 02-3053
                                       Life Ins. Co., et al.                       Life Ins. Co., et al.

disability’ must be based on the claimant’s ability to pursue                 under the deferential arbitrary and capricious standard is not
‘gainful employment in light of all the circumstances.’”).13                  a rubber stamp and deference need not be abject. Even under
                                                                              the deferential review we will not uphold a termination when
   Finally, contrary to Western-Southern’s argument, the                      there is an absence of reasoning in the record to support it.
highly deferential standard of review applicable in this case                 The termination decision here is just such a
does not automatically mandate adherence to Western-                          decision.”)(internal citation omitted); see also Swaback v.
Southern’s decision. “Review under [the arbitrary and                         American Info. Techs. Corp., 103 F.3d 535, 540 (7th Cir.
capricious] standard is extremely deferential and has been                    1996)(holding that “[a]lthough we review the committees’
described as the least demanding form of judicial review. It                  actions in a deferential light, we shall not rubber stamp their
is not, however, without some teeth.” Cozzie v. Metropolitan                  decisions.”).
Life Ins. Co., 140 F.3d 1104, 1107-08 (7th Cir. 1998)
(internal citation omitted). “‘Deferential review is not no                                       III. CONCLUSION
review,’ and ‘deference need not be abject.’” Hess v.
Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th                       Accordingly, for the reasons set forth above, we AFFIRM
Cir. 2001)(quoting Gallo v. Amoco Corp., 102 F.3d 918, 922                    the judgment of the district court.
(7th Cir. 1996)). In the instant case, the district court had an
obligation under ERISA to review the administrative record
in order to determine whether the plan administrator acted
arbitrarily and capriciously in making ERISA benefits
determinations. This obligation inherently includes some
review of the quality and quantity of the medical evidence
and the opinions on both sides of the issues. Otherwise,
courts would be rendered to nothing more than rubber stamps
for any plan administrator’s decision as long as the plan was
able to find a single piece of evidence–no matter how obscure
or untrustworthy–to support a denial of a claim for ERISA
benefits. See Hackett v. Xerox Corp. Long-Term Disability
Income Plan, 315 F.3d 771, 774-75 (7th Cir. 2003)(“Review


    13
        Another reason why his supplemental report should be discounted
is because Dr. Clary concluded that McDo nald’s challenge to W estern-
Southern’s termination of his LTD benefits was indicative o f his ability
to return to work: “In my medical opinion, the vigorous pursuit of
disab ility claim would argue against disability for severe depression .”
This “medical” conclusion, of course, is absurd and would render
meaningless the statutory right to file suit in district court in o rder to
challenge denials of ERISA benefits and denials of disability insurance
benefits and supplemental security income under the Social Security Act.
