                                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                                        Pursuant to Sixth Circuit Rule 206
                                                File Name: 05a0335p.06

                           UNITED STATES COURT OF APPEALS
                                           FOR THE SIXTH CIRCUIT
                                             _________________


                                                          X
                                   Plaintiff-Appellant, -
 SHARON MCCARTHA,
                                                           -
                                                           -
                                                           -
                                                               No. 04-1167
          v.
                                                           ,
                                                            >
 NATIONAL CITY CORPORATION; NATIONAL CITY LONG-            -
                                                           -
                                                           -
 TERM DISABILITY PLAN; NATIONAL CITY BANK OF

                                 Defendants-Appellees. -
 MICHIGAN/ILLINOIS,

                                                           -
                                                          N
                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                     No. 03-70406—John Corbett O’Meara, District Judge.
                                              Argued: April 21, 2005
                                      Decided and Filed: August 10, 2005
       Before: SUHRHEINRICH and GILMAN, Circuit Judges; ACKERMAN, District Judge.*
                                                _________________
                                                     COUNSEL
ARGUED: Lawrence J. Breskin, Detroit, Michigan, for Appellant. Mark S. Allard, VARNUM,
RIDDERING, SCHMIDT & HOWLETT, Grand Rapids, Michigan, for Appellees. ON BRIEF: Lawrence
J. Breskin, Detroit, Michigan, for Appellant. Mark S. Allard, VARNUM, RIDDERING, SCHMIDT &
HOWLETT, Grand Rapids, Michigan, for Appellees.
                                                _________________
                                                    OPINION
                                                _________________
         SUHRHEINRICH, Circuit Judge. Plaintiff Sharon McCartha (“McCartha”) appeals from the order
of the district court granting judgment on the administrative record to Defendants National City Corporation
(“National City”) and National City Long-Term Disability Plan (“Disability Plan” or “Plan”) (collectively
“Defendants”), and from the order granting Defendants’ motion for reconsideration in this action brought
under 29 U.S.C. § 1132(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001-1461
(“ERISA”). For the reasons that follow, we AFFIRM.



   *
    The Honorable Harold A. Ackerman, United States District Judge for the District of New Jersey, sitting by designation.


                                                            1
No. 04-1167            McCartha v. National City Corporation, et al.                                    Page 2


                                                     I.
       McCartha was employed by Defendant National City Corporation. Under National City’s Flexible
Benefits Program (“Flex Plan”), McCartha elected to be covered by the Disability Plan. The Disability Plan
is administered by National City.
        On June 6, 2000, McCartha became disabled, and National City gave her a medical leave of absence.
McCartha’s subsequent application for short-term disability benefits was approved, and she began receiving
benefits on June 12, 2000. The Plan also approved McCartha for long-term disability benefits, in the
amount of $1,050 per month, beginning in December 2000. At that time McCartha was specifically
informed that “payment of future benefits depends on certification of continuing disability, and on other
applicable Plan provisions.”
       McCartha’s treatment plan required her to make one appointment per month with her doctor and one
therapy session per month, on the same day. After learning that McCartha had missed her December 15,
2000 appointment, the Disability Plan contacted McCartha. McCartha acknowledged missing the
appointment, but maintained that she was ill, and stated that she had rescheduled for December 26, 2000.
McCartha missed that appointment as well as the next one scheduled for January 5, 2001.
        On January 5, 2001, Dr. Quadir told the Disability Plan that he believed that McCartha’s depression
had become “resistant.” Also on January 5, 2001, the Disability Plan contacted Theresa Savel, McCartha’s
therapist, to find out the date of McCartha’s next scheduled appointment. Savel stated that McCartha had
not shown for, or rescheduled, her appointment. Savel also told the Disability Plan that McCartha had a
history of missing appointments and then calling for prescription refills, or coming in on a walk-in basis on
Mondays or Fridays when she knew that Dr. Quadir was in the office. Savel further stated that McCartha
had called in on January 5, 2001 to get her prescriptions refilled, but that Dr. Quadir refused to refill her
prescriptions unless she was seen. Finally, Savel remarked that McCartha’s lack of progress was likely due
to her not being seen on a regular basis. In a follow-up discussion on January 8, 2001, Savel told the
Disability Plan that McCartha had multiple missed appointments.
      On January 9, 2001, the Disability Plan terminated McCartha’s benefits based on her failure to
comply with the terms of the treatment plan. The letter referenced Section 6.1 of the Disability Plan:
       A Participant’s continued eligibility for Long-Term Disability benefits is conditioned upon
       the Participant’s furnishing to the Named Fiduciary, at the time the Participant makes a claim
       for Benefits and from time to time thereafter, at the Named Fiduciary’s request, medical
       verification of the Long-Term Disability, obtained from independent medical examinations
       made by a physician acceptable both to the Participant and the Named Fiduciary.
The letter also stated that under Section 6.4, the Plan excludes “any condition for which the Participant
refuses to be treated by a licensed physician or other medical practitioner approved by the Named
Fiduciary.”
       The letter then explained that the Disability Plan had verified with McCartha’s doctor and therapist
that she was not scheduling appointments as required and had missed numerous doctor and therapy
appointments over a six-month period, detailing the appointments missed. The letter stated that “[y]ou have
not been compliant with your full treatment protocol which has delayed your progress. Based on the above
Exclusion you are no longer eligible for benefits.”
        McCartha appealed the decision to the Plan’s Claims Appeal Committee (“Appeal Committee”).
In her appeal, McCartha explained that she had always been compliant with her treatments to the extent she
was able, and that she “never refused any treatments or refused to be treated by a licensed physician.” She
offered various excuses for each missed appointment, including illnesses and weather.
No. 04-1167                 McCartha v. National City Corporation, et al.                                              Page 3


        The Appeal Committee addressed her appeal at its April 12, 2001 meeting. In a letter dated April 23,
2001, the Appeal Committee requested an extension of time to consider McCartha’s appeal, explaining that
“[d]ue to limited information available for our review, the committee was not yet able to make a
determination on your appeal.” The Appeal Committee asked McCartha to “supply additional medical
information” and to have her physician complete an enclosed questionnaire.
        Prior to the Appeal Committee’s meeting on June 20, 2001, McCartha requested an extension of time
to respond to the April 23, 2001 letter, because she had a doctor’s appointment scheduled for June 26, 2001.
The Appeal Committee acquiesced, and agreed to delay its decision until June 28, 2001. McCartha failed
to submit any information, however, and,      on June 28, 2001, the Appeal Committee denied McCartha’s
appeal and upheld the denial of benefits.1 The letter stated in relevant part:
                The Committee considered the information and opinions provided by all physicians
         who examined you. No current opinions indicate that you are prevented from engaging in
         any activity on account of a physical or mental impairment. Further, no information was
         presented to demonstrate compliance with your treatment protocol (as we requested via the
         Physician Questionnaire and letter dated April 23, 2001).
         On January 8, 2003, McCartha filed a claim in state court seeking long-term disability benefits from
the Disability Plan under the ERISA Act, and disability discrimination under state law. On January 30,
2003, Defendants removed the suit to federal court. On November 4, 2003, McCartha stipulated to the
dismissal of her state-law claim. On December 22, 2003, the district court granted Defendants’ motion for
judgment on the administrative record. Adopting a de novo review, the district court found that the
Disability Plan’s decision was “fully supported by the administrative record.” Specifically, the court noted
that it was undisputed that “Plaintiff missed several doctor’s appointments and failed to schedule multiple
therapy sessions” and “failed to supply information regarding her treatment plan after the Board granted her
request for an extension of time.” The court concluded that the “administrative record demonstrates that
Plaintiff’s admitted failure to follow her treatment plan falls within the Plan’s exclusion for refusal of
treatment.” On February 19, 2004, the district court granted Defendants’ motion for reconsideration, ruling
that the Disability Plan contained a grant of discretionary authority to determine eligibility for benefits and
to construe the terms of the plan. The court therefore held that the proper standard of review was arbitrary
and capricious, and, because this standard is more deferential to defendants than that employed in its initial
opinion, the court left its substantive findings unaltered.
                                                              II.
        The parties do not dispute that the Disability Plan is an employee benefit plan as defined in ERISA.
See 29 U.S.C. § 1002(1) & (3). Section 502(a)(1)(B) gives a participant or beneficiary the right to bring
a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B). Our review of the ERISA administrative decision is limited to evidence presented to the
Appeal Committee. See Wilkins v. Baptist Healthcare Sys. Inc., 150 F.3d 609, 617-20 (6th Cir. 1998).
                                                             III.
                                                              A.
        First, McCartha challenges the standard of review used by the district court. We review the denial
of benefits under § 502(a)(1)(B) de novo “unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone

    1
     The record also reflects that at 8:35 a.m. on June 28, 2001, the Plan left McCartha a voice mail message informing her that
the Appeal Committee had not received any information from her, and that the meeting was at 10:30 a.m. that day.
No. 04-1167               McCartha v. National City Corporation, et al.                                            Page 4


Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When a plan affords discretion to an administrator
or fiduciary, the arbitrary and capricious standard of review applies. Marks v. Newcourt Credit Group, Inc.,
342 F.3d 444, 456 (6th Cir. 2003). Under this standard, the decision is affirmed if “‘rational in light of the
plan’s provisions.’” Id. at 456-57 (quoting Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062,
1066 (6th Cir. 1998)).
        McCartha contends that nothing in the copy of the Disability Plan as produced by Defendants during
discovery, and as presented to the district court as part of its motion for judgment on the administrative
record, states that the plan administrator has any discretionary authority. McCartha therefore claims that
she correctly argued before the district court that the de novo standard of review applied.
        The documents provided to the district court in support of Defendants’ motion for judgment on the
administrative record included the following provision: “(ADMINISTRATION) This Plan shall be
administered by the Named Fiduciary in accordance with the procedures and provisions of the Flex Plan.”
As the record before the district court did not originally contain the Flex Plan referenced in the Disability
Plan, McCartha argues that the arbitrary and capricious standard of review was inapplicable.2 Further, in
her response to Defendants’ motion for judgment on the administrative record, McCartha clearly argued that
the de novo standard of review applied.
        However, McCartha was on notice that the plan language relevant to the district court’s standard of
review was to be found in the Flex Plan, because the Disability Plan clearly incorporated it. In fact,
McCartha quoted this exact provision in her brief in response to Defendants’ motion for judgment on the
administrative record. The absence of that precise language before the district court on summary judgment
is not analogous to the court reviewing materials not part of the administrative record, although she makes
a veiled argument to that effect.
         In any event, because McCartha’s claim fails under either standard of review, as the district court
found, the point is moot. The Flex Plan provides in pertinent part that the Plan Administrator “shall have
such duties and powers as National City may prescribe as necessary to administer this Plan and each Benefit
Plan,” and that the Plan Administrator and each Named Fiduciary shall have the power “to construe and
interpret this Plan and each Benefit Plan and to decide all questions of eligibility.” This language clearly
confers discretion on the Plan. Cf. Marks, 342 F.3d at 457 (discretion conferred by plan language providing
that “‘[t]he Plan Administrator shall make the rules and regulations necessary to administer the Plan and
shall have the responsibility and discretionary authority to interpret the terms of the Plan, determine
eligibility for benefits and to determine the amounts of such benefits’”); Borda, 138 F.3d at 1066 (discretion
conferred by plan language stating that “[t]he Administrator shall have the power to make determinations
with respect to all questions arising in connection with the administration, interpretation, and application
of the Disability Plan, as well as “establish procedures, correct any defect, supply any information, or
reconcile any inconsistency . . . as it deems necessary” to carry out the purposes of the plan”).
         Further, because National City’s Plan is self-funded, and National City management employees
make the decisions regarding termination of benefits, we must take into account the administrator’s self-
interest in applying the arbitrary and capricious standard of review. Marks, 342 F.3d at 457. However, this
Court has rejected the notion that the conflict of interest inherent in a self-funded and self-administered plan
alters the standard of review. Peruzzi v. Summa Med. Plan, 137 F.3d 431, 433 (6th Cir. 1998).
                                                           B.
        McCartha contends that the Plan improperly denied benefits under an exclusion for “refusing” to
be treated because the record establishes that she did not “refuse” treatment, but simply missed some of her

    2
     Defendants concede that the Flex Plan itself was not before the district court until Defendants filed their motion for
reconsideration.
No. 04-1167             McCartha v. National City Corporation, et al.                                   Page 5


appointments. McCartha further asserts that the Plan failed to carry its burden of showing that she refused
to be treated because the Plan did not investigate the legitimate reasons she presented for each missed
appointment. An ERISA plan, not the participant, has the burden of proving an exclusion applies to deny
benefits. Caffey v. Unum Life Ins. Co., 302 F.3d 576, 580 (6th Cir. 2003) (citation omitted).
        The evidence in the administrative record supports the Appeal Committee’s decision to terminate
McCartha’s disability benefits on the basis of this exclusion. See Univ. Hosps. of Cleveland v. Emerson
Elec., 202 F.3d 839, 846 (6th Cir. 2000) (stating that this Court must defer to an administrative appeal
committee’s decision if “it is possible to offer a reasoned explanation, based on the evidence, for a particular
outcome”). The record reflects that McCartha’s treatment plan called for her to attend monthly doctor
appointments and monthly therapy sessions, as well as to take the prescribed medications. McCartha’s own
treating physician and therapist established McCartha’s noncompliance. As of January 5, 2001, Dr. Quadir
refused to provide her with any additional prescription medications because she had missed numerous
scheduled appointments. Savel confirmed that she had also missed several therapy sessions, and that she
had a pattern of showing up merely to get prescription refills. Although McCartha argues that her behavior
does not constitute a “refusal” under various dictionary definitions, we cannot say that the Plan acted
arbitrarily and capriciously in concluding that McCartha’s repeated failure to follow her treatement protocol
was tantamount to a refusal to be treated. Significantly, the Disability Plan gives the named fiduciary
discretion “to construe and interpret this Plan” as well as to decide questions of eligibility. See Peruzzi,
137 F.3d at 433 (holding that where ERISA plan gives the administrator discretion to interpret its terms, the
administrator’s interpretation must be upheld unless it is arbitrary and capricious or unreasonable). In short,
the record supports the Appeal Committee’s decision under Section 6.4 of the Plan.
         McCartha claims that the Disability Plan did not meet its burden because it failed to refute her
legitimate reasons for missing appointments. Again, the record itself undermines McCartha’s argument.
The Disability Plan called Savel to confirm McCartha’s assertion that she had scheduled an appointment
for December 26, 2000. In so doing, the Disability Plan was informed that the office was not even open that
day. The Disability Plan also asked Savel if McCartha had a walk-in appointment on January 5, 2001.
Savel stated that McCartha was a no-show for that appointment. In any event, McCartha’s litany of excuses
cannot save her claim. Based on the undisputed report of her own treating physician, McCartha herself
frustrated all efforts for proper treatment. Thus, the Committee’s decision cannot be considered arbitrary
and capricious on this basis, even when considering the Committee’s self-interest. Cf. Miller v. Metro. Life
Ins. Co., 925 F.2d 979, 984-85 (6th Cir. 1991) (holding that insurance company’s decision to terminate
benefits was not arbitrary or capricious, despite its self-interest, where two psychiatrists, including the
plaintiff’s own treating physician, had indicated that the plaintiff’s prolonged depressive reaction was in
partial remission).
                                                      C.
       McCartha also argues that the Disability Plan violated her due process rights under 29 U.S.C. § 1133
because it failed to give her notice that the Disability Plan was also denying her claim on the basis that she
was no longer disabled.
        ERISA requires a plan to provide participants with adequate notice of the reasons for denying
benefits and to afford a reasonable opportunity for a full and fair review. 29 U.S.C. § 1133. Section 1133
states that
       every employee benefit plan shall--
              (1) provide adequate notice in writing to any participant or beneficiary whose
              claims for benefits under the plan has been denied, setting forth the specific
              reasons for such denial, written in a manner calculated to be understood by
              the participant, and
No. 04-1167                   McCartha v. National City Corporation, et al.                                                    Page 6


                    (2) afford a reasonable opportunity to any participant whose claim for
                    benefits has been denied for a full and fair review by the appropriate named
                    fiduciary of the decision denying the claim.
29 U.S.C. § 11333; see also Marks, 342 F.3d at 459.
        We review de novo the legal question of whether the procedure employed by the fiduciary in
denying the claim meets the requirements of § 1133. Kent v. United Omaha Life Ins. Co., 96 F.3d 803, 806
(6th Cir. 1996).
         This Court has adopted a “substantial compliance” test in deciding whether denial notices meet the
requirements of § 1133. See Marks, 342 F.3d at 460; Kent, 96 F.3d at 807-08. In making that assessment,
the court must consider all the communications between the administrator and plan participant. Marks, 342
F.3d at 460. “In this analysis, it is crucial for us to determine whether the plan administrators fulfilled the
essential purpose of § 502–notifying [the claimant] of their reasons for denying [her] claims and affording
[her] a fair opportunity for review. Id. (citing Kent, 96 F.3d at 807). If the denial notice is not in substantial
compliance with § 1133, reversal and remand to the district court or to the plan administrator is ordinarily
appropriate. See id. at 461 (citing Vanderklok v. Provident Life & Acc. Ins. Co., 956 F.2d 610, 619 (6th Cir.
1992)). However, a remand is not required if it would “represent a useless formality.” Kent, 96 F.3d at 807.
       According to McCartha, unbeknownst to her, the Disability Plan referred her appeal to Janet
O’Bryant, a nurse case manager, for review. O’Bryant concluded that McCartha had “failed to provide any
additional medical to support her claim,” noting that the record did not contain any additional office notes
from Dr. Quadir or Savel. O’Bryant also stated that
           [f]or a diagnosis of major depression, the claimant should be seen at least once a week in the
           office, and less depressed patients should be seen in the office every 10-14 days.
           Pharmocotherapy response needs to be evaluated 4-6 weeks and there should be at least a
           25% decrease in symptoms. These are the guidelines for major depression.
O’Bryant noted that although McCartha had been diagnosed with major depression, there was no objective
medical evidence to support continued disability at that time, that no psychological testing had been done,
and that McCartha was not being seen on a regular basis by either the psychiatrist nor the therapist.
O’Bryant therefore concluded that the medical information did not substantiate a finding of continued total
disability.
        McCartha claims that the January 9, 2001 letter identified only one reason for terminating her
benefits, namely her failure to comply with her treatment schedule, and failed to timely notify her that the



    3
        The Department of Labor regulations further explain that
           The notification shall set forth, in a manner calculated to be understood by the claimant--
           (i) The specific reason or reasons for the adverse determination;
           (ii) Reference to the specific plan provisions on which the determination is based;
           (iii) A description of any additional material or information necessary for the claimant to perfect the claim and
           an explanation of why such material or information is necessary;
           (iv) A description of the plan’s review procedures and the time limits applicable to such procedures, including
           a statement of the claimant’s right to bring a civil action under section 502(a) of the Act following an adverse
           benefit determination on review[.]
29 C.F.R. § 2560.503-1(g) (2005).
No. 04-1167             McCartha v. National City Corporation, et al.                                  Page 7


termination of benefits would also be premised on the fact that there was no objective medical evidence to
support continued disability, as O’Bryant concluded.
         The June 28, 2001 final decision letter provides two reasons for terminating McCartha’s benefits:
(1) “[n]o current opinions indicate that you are prevented from engaging in any activity on account of a
physical or mental impairment;” and (2) “[f]urther, no information was presented to demonstrate compliance
with your treatment protocol (as we requested via the Physician Questionnaire and letter dated April 23,
2001).” Although McCartha received advance notice that her benefits would be terminated based on the
failure to comply with her treatment plan as excluded under Section 6.4 of the Disability Plan, she was not
notified that the Disability Plan was considering terminating her due to the lack of a current opinion
certifying continuing disability per Section 6.1.
       Defendants first argue that the December 11, 2000 letter which approved McCartha’s claim for long-
term disability benefits specifically stated that “payment of future benefits depends on certification of
continuing disability[.]” This letter cannot satisfy ERISA’s notice requirement to provide a “specific”
reason for the denial of benefits because it was written before McCartha’s benefits were denied.
        Defendants next argue that the March 20, 2001 letter (which is identical to January 9, 2001 letter)
specifically cited to Section 6.1 of the Plan, which requires ongoing “medical verification of Long-Term
Disability,” thus satisfying ERISA’s requirement for a specific reason for the denial of benefits. Defendants
then note that on April 23, 2001, the Plan asked McCartha to have her doctor complete a questionnaire
regarding her ongoing status as disabled and the treatment plan in effect for her at that time.
        This argument must be rejected. Although the correspondence referred to Section 6.1, the letters
did not indicate that McCartha’s failure to comply with the provision was “the specific reason for such
denial.” 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1(g). In fact, the January 9 and March 20 letters stated
that “[b]ased on the above Exclusion [6.4] you are no longer eligible for benefits.” In other words, this
correspondence created the distinct impression that McCartha’s “refusal” to comply with her treatment plan
under Section 6.4 was the sole basis of the denial of benefits. This conclusion is reinforced by the fact that
the June 28, 2001 letter explicitly distinguished the two bases for termination: “[f]urther, no information
was presented to demonstrate compliance with your treatment protocol (as we requested via the Physician
Questionnaire and letter dated April 23, 2001).” Thus, the Disability Plan itself viewed the questionnaire
as merely addressing the compliance question. Although the questionnaire inquired as to the status of
McCartha’s disability status, it did not expressly ask the treating physician to certify that she was currently
disabled.
        In short, Defendants were not in substantial compliance with the requirements of § 1133 because
McCartha was never timely informed that the failure to provide current medical opinions as to her long-term
disability would be one of the bases for the termination of her benefits. We must still determine whether
a remand would be fruitful, however.
        In urging that a remand is required, McCartha relies on White v. Aetna Life Ins. Co., 210 F.3d 412,
417-18 (D.C. Cir. 2000). There, the plaintiff, a registered nurse who suffered from osteoarthritis, applied
for and received short-term disability benefits based on a short-term disability certification by Dr. Engh, an
orthopedic surgeon. Upon being informed in December 1996 that her short-term disability benefits were
about to end, the plaintiff applied for long-term disability benefits. The plaintiff submitted a leave of
absence certificate from Dr. Engh along with a report in which he described his diagnosis as “osteoarthritis”
and stated that White needed hip replacement surgery. An Aetna claims representative orally informed the
plaintiff that her claim had been denied. Aetna gave three reasons for the denial: (1) the Plan had not been
able to contact the plaintiff’s orthopedic surgeon over a three-day period; (2) the plaintiff’s internist had
refused to confirm that White was disabled to work; and (3) White should have already undergone hip
replacement surgery. Id. at 415. White asked Aetna for a written confirmation but received none.
No. 04-1167             McCartha v. National City Corporation, et al.                                  Page 8


       On February 26, 1997, White’s attorney informed Aetna that the hip replacement surgery was
scheduled for April 1 and asked that her claim be reconsidered. Id. The attorney also attached a copy of
Dr. Engh’s certificate as well as a more detailed report from Dr. Engh. Id.
        On March 13, 1997, Aetna sent a written denial stating, “[d]ue to the lack of sufficient clinical
information to support your request, your period of disability could not be recertified.” Id. at 415. Aetna
also informed White’s attorney by phone that one of the reasons for the denial was the lapse in time between
the August physical examination and the April surgery. Id.
        In her appeal of the denial of benefits, White included a letter from her internist explaining that her
blood pressure was not sufficiently under control to clear her for surgery before April. Id. at 416. The
internist also opined that White was disabled. Id. at 416. Also included was an updated medical report from
Dr. Engh stating that White was completely disabled. Id. Aetna denied the request for review as well-
beyond the sixty-day appeal period. Id.
        The district court granted summary judgment to Aetna, finding that the March 13 denial notice,
together with Aetna’s oral communications with White, substantially complied with ERISA and its
regulations. Id.
        The Court of Appeals reversed. The court noted that the March 13 notice and Aetna’s conversations
with the plaintiff identified three reasons for denying White’s claim. The court held that had these been the
only reasons for the denial, Aetna would have substantially complied with § 1133. Id. at 417. However,
the record revealed that Aetna’s denial rested on a fourth reason, provided in Aetna’s statement of material
facts, namely “Aetna’s concern” that “Dr. Engh had refused to certify White as disabled.” Id. The court
was unable to find any evidence that Aetna ever communicated this reason to White or her lawyer. Id. The
court further noted that, at oral argument, Aetna’s counsel conceded that there was no such evidence. Id.
The Court of Appeals held that “[n]ot telling White that her claim had been denied in part because Dr. Engh
had failed to certify her as disabled amounts to a major omission.” Id. at 417-18. The court noted that based
on the March 13 notice and phone calls, White did not have “any way of knowing that to perfect the claim,
White needed to get Dr. Engh to certify her as disabled.” Id. at 418. Thus, the court concluded that Aetna
had failed to give White a “specific reason” for denying her claim and failed to tell her the additional
information necessary to perfect her claim so as to be in substantial compliance with § 1133. Id. at 418.
The White court therefore ordered a remand because both the plaintiff’s doctor and internist found her to
be totally disabled and Aetna had not reviewed the plaintiff’s claim on the merits. Id. at 418.
        Like the White case, the Disability Plan failed to provide McCartha with one of the specific reasons
for terminating her benefits. However, White is distinguishable in a critical respect. In White, Aetna never
considered the merits of the plaintiff’s appeal. Id. at 418. Here, the Appeal Committee ruled on the merits,
and provided two independent reasons for denying her benefits. Furthermore, this additional evidence would
not render arbitrary and capricious the Disability Plan’s other reason for denying benefits–McCartha’s
refusal to comply with her treatment plan. Cf. id. at 418 (noting in dicta that a prejudice test might be
worthwhile prior to ordering a remand in cases where a claimant has already received a full and fair review
of the decision denying his or her claim) (citing Kent, 96 F.3d at 807). Despite numerous opportunities from
the Disability Plan, McCartha failed to provide proof that she was complying with her own doctor’s
treatment plan. Thus, a remand would be a “useless formality” because the Disability Plan still provided
a reasonable basis for denying her benefits–her refusal to comply with her treatment plan. See Kent, 96 F.3d
at 807 (stating that “[i]n light of the plan language giving the fiduciary broad discretion to make coverage
decisions, additional evidence is only pertinent to the extent that it shows that the fiduciary’s decision was
an abuse of discretion”). In sum, the Disability Plan’s procedural violation does not require a substantive
remedy. Id.
No. 04-1167         McCartha v. National City Corporation, et al.                  Page 9


                                               IV.
      For the foregoing reasons, the judgment of the district court is AFFIRMED.
