                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2009

Michaels v. Equitable Life
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4256




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4256


                              LAWRENCE MICHAELS,
                                             Appellant

                                              v.

                 THE EQUITABLE LIFE ASSURANCE SOCIETY
              OF THE UNITED STATES EMPLOYEES, MANAGERS,
             AND AGENTS LONG-TERM DISABILITY PLAN, ET AL.




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (Civil No. 04-cv-3250)
                      District Judge: Honorable J. Curtis Joyner


                              Argued on December 1, 2008

          Before: AMBRO, WEIS, and VAN ANTWERPEN, Circuit Judges.

                                  (Filed: January 5, 2009)

Ronald H. Surkin, Esq. (Argued)
Gallagher, Schoenfeld, Surkin, Chupein & Demis, PC
25 W. Second Street
P.O. Box 900
Media, PA 19063

      Counsel for Appellant

Daniel J. Zucker, Esq. (Argued)
Deborah Z. Winfield, Esq.
Law Offices of Daniel J. Zucker
260 South Broad Street, Ste. 1200
Philadelphia, PA 19102

       Counsel for Appellees




                                 OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant-Plaintiff Lawrence Michaels appeals from the District Court’s decision

affirming the denial of long-term disability benefits by the Equitable Life Assurance

Society of the United States Employees, Managers, and Agents Long-Term Disability

Plan and AXA Financial, Inc., the Appellees-Defendants. For the following reasons, this

Court will vacate the District Court’s decision and remand for further proceedings in

accordance with this opinion.

                                I. Facts and Procedural History

       Appellant Lawrence Michaels sustained a midshaft fracture of his left femur

during a horseback riding accident on July 12, 1997. As a result of this injury, a rod was

implanted into his femur. App. at 669, 943. Following this surgery, Michaels began

treatment with Dr. Eric Katz, an orthopedic surgeon, and he has continued this treatment

throughout all periods relevant to this litigation.

       At the time of his injury, Michaels was employed at a law firm as a tax attorney,

but the law firm terminated his employment effective December 31, 1998 because he was


                                               1
unable to perform the duties required of him due to his “physical[] impair[ment] and

severe[] restrict[ion] with respect to travel for the purpose of business development and

servicing of clients.” App. at 677, 679. In January 1999, following this termination,

Michaels accepted a position with the Equitable Life Assurance Society of the United

States (“Equitable”),1 an organization that provided short- and long-term disability

insurance to its employees via the Equitable Life Assurance Society of the United States

Employees, Managers, and Agents Long-Term Disability Plan (“Plan”);2 Michaels

enrolled in the Plan and received a copy of the Summary Plan Description 3 (“SPD”).

       Aetna US Healthcare (“Aetna”) administered Equitable’s Plan until December 31,




       1
      The Equitable Life Assurance Society is now AXA Equitable Life Insurance
Company. These organizations are collectively referred to as “Equitable.”
       2
        The Plan is an employee welfare benefit plan within the meaning of sections 3(1)
and 4 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§
1002(1), 1003. The Plan is now known as the Long Term Disability Plan.
       3
        Another plan was adopted after the SPD; specifically, Equitable and Aetna
adopted a Managed Disability Coverage plan (“MDC”) that differed from the SPD in
some respects. In particular, the MDC provided that “a certified period of disability will
end after 24 months if Aetna determines that the disability is, at any time[,] caused to any
extent by a mental condition.” App. at 210. Although the Managed Disability Plan was
scheduled to be effective on January 1, 1995, Michaels claimed that he never received the
MDC plan document, and Equitable did not contest that claim. Accordingly, the District
Court found that “to the extent that [the SPD] differs from the [Managed Disability
Coverage document], we find that the language describing the 24-month provision in the
SDP [sic] should govern.” Michaels v. Equitable Life Assurance Society of the United
States Employees, Managers, and Agents Long-Term Disability Plan et al., No. 04-CV-
3250, 2007 WL3024571, at *8 (E.D. Pa. Oct. 15, 2007). Equitable does not contest this
finding of the District Court.

                                             2
2003, and MetLife became the Plan administrator on January 1, 2004.4 The SPD provides

that “[a] period of total disability will end after 24 months of receiving disability benefits

if it is determined that the disability arises from or on account of . . . a mental condition

described in the most current edition of the Diagnostic and Statistical Manual of Mental

Disorders.” App. at 152. Further, the Plan set forth two different definitions for “total

disability” based on the duration of the claimant’s disability period:

       •      during the first two years of your period of disability, you’re unable to
              report to work and perform all of the material or essential duties of your
              own occupation due to illness or injury; and
       •      after the first two years of your period of disability, you’re unable to engage
              in any gainful occupation for which you are, or may reasonably become,
              qualified by education, training, or experience, other than work under an
              approved rehabilitation program.

Id. (emphasis added).

       On May 25, 1999, Michaels stopped working and filed a claim for total disability

benefits; he has not engaged in any gainful employment since that date. Aetna certified

Michaels for a period of short-term disability beginning in May 1999. While this initial

certification did not state the basis for the grant of benefits, an entry in Aetna’s internal



       4
        The SPD granted the administrator discretionary authority to determine eligibility
for benefits and to interpret the Plan’s terms. Specifically, it provided that:
               [t]he Plans will be administered—and all benefits authorized—by the
       Plan Administrator or its agent. The Plan Administrator, or a designated
       party, has the discretionary authority to determine eligibility for benefits
       under these Plans. This discretionary authority includes the right to make all
       determinations about the right of any person to receive benefits under the
       Plan and to interpret the terms of the Plan.
App. at 147.

                                               3
claims system from May 26, 1999 makes reference to Michaels’s implanted femoral rod

as well as his major depression. To facilitate its disability assessments, Aetna requested

Michaels’s existing medical records as well as ongoing “Managed Disability Statements”

from Dr. Katz and Dr. Aaron Tessler, Michaels’s psychiatrist. Following the receipt of a

Managed Disability Statement from Dr. Katz on June 2, 1999, in which he characterized

Michaels’s return to work as “unknown,”Aetna extended his certification for short-term

benefits through July 6, 1999. Id. at 247-48, 697. Katz described Michaels’s “persistent

and increasing” pain in his left hip resulting from the implanted femoral rod and

recommended that he limit his “ambulatory and sitting activities.” Id. at 248, 702. Aetna

recertified Michaels’s claim for benefits for another thirty-one days beginning on July 22,

1999 based on the clinical information submitted by Dr. Katz.

       An entry in Aetna’s claims processing system details a July 23, 1999 voicemail

from Dr. Tessler, which stated that Michaels suffered from depression, had difficulty

concentrating, and exhibited diminished organizational skills. In a Managed Disability

Statement received on July 28, 1999, Dr. Tessler added that Michaels’s ability to return to

work was “unclear.” Id. at 265, 717. Aetna periodically recertified Michaels and, in

November 1999, approved Michaels for long-term disability benefits. Thereafter, Aetna

periodically recertified him for continued long-term benefits under the Plan. The letter

notifying Michaels of his approval for long-term benefits did not specify the basis for his

benefits, but it did provide that he would be ineligible for long-term disability payments



                                             4
after twenty-four months if his disability was “the result of a mental condition.” Id. at

577-79. Further, it provided that if Michaels was still eligible for long-term disability

benefits after May 25, 2001, he would be required to meet the “more stringent ‘any

occupation’ definition of disability.” App. at 579. This provision of the SPD, quoted

supra, provides that the claimant’s inability to perform the duties of his own occupation is

sufficient to qualify as “totally disabled” in the first twenty-four months of disability, but,

after twenty-four months of disability, the claimant must be unable “to engage in any

gainful occupation.”

       Following Aetna’s approval of long-term disability benefits for Michaels, Dr. Katz

and Dr. Tessler continued to treat him. Dr. Katz reported Michaels’s ongoing “pain and

stiffness in the left hip region” that was “aggravated by even short periods of sitting and

standing” as well as Michaels’s “difficulty in ambulation.” In the course of treatment, Dr.

Katz and Michaels repeatedly discussed the possible removal of the femoral rod; this

procedure was never completed, apparently because the doctors could not assure

Michaels that the surgery would relieve his symptoms. Dr. Tessler reported continued

mood instability for Michaels and diagnosed him with Bipolar Disorder in March 2000.

       In June 2000, Aetna arranged appointments for Michaels to undergo a

psychological examination and an Independent Medical Examination (“IME”) with

psychologist Dr. Donald Hiebel and psychiatrist Dr. Jerome Schnitt, respectively. Dr.

Heibel reported that Michaels was “experiencing a severe Bipolar I Disorder manifested



                                               5
currently by an incapacitating depression” and stated that Michaels was “probably”

capable of some work although he was “not able currently to do the kind of job he did

before” and was “certainly not able to command anywhere near his previous income.”

App. at 593-95. Dr. Schnitt’s IME diagnosed Michaels as bipolar, characterized him as

“severely debilitated by his illness,” and concluded that “[a]t this time he cannot work at

any level, in any capacity.” Id. at 45456, 596-97.

        Based on the reports of Drs. Katz, Tessler, Hiebel, and Schnitt, Aetna continued to

recertify Michaels until May 2001. Aetna terminated Michaels’s benefits on May 26,

2001, twenty-four months after he began receiving benefits, and informed him via letter

shortly thereafter. As permitted by the Plan, on July 16, 2001, Michaels timely appealed

Aetna’s decision to terminate his benefits, contending that his disability did not “arise

from or on account of” a mental condition. App. at 612-16. Following this appeal, Dr.

Oyebode Taiwo, Aetna’s medical consultant, reviewed Michaels’s file, which included

the reports of Drs. Katz, Tessler, Heibel, and Schnitt, and concluded that “the primary

health problem preventing [Michaels] from gainful employment is his psychiatric

condition.” With respect to Michaels’s ability to work, Dr. Taiwo found that, in light of

his physical limitations, “he should be physically capable of performing sedentary work.”

Id. at 424-26, 548-51. Accordingly, Aetna denied Michaels’s first appeal in November

2001.

        Michaels requested a second review of Aetna’s termination of his disability



                                              6
benefits on May 23, 2003; his appeal, which included updated records, was referred to the

Equitable Benefits Appeals Committee for a final decision. This Committee sought

additional information relating to Michaels’s orthopedic problem and requested, inter alia,

that Michaels submit to an orthopedic IME. App. at 757-58.

       In a letter dated November 10, 2003, Dr. Robert Geist reported that he conducted

an orthopedic IME of Michaels and found that Michaels’s medical prognosis was “poor.”

Dr. Geist indicated that Michaels was “unlikely to be able to resume his previous work

status” and that he “would be eligible, at most, for part-time sedentary work.” Dr. Geist

also noted that, if Michaels returned to work, he “would require a job that could allow

alternate sitting and standing every half hour” and an “environmentally controlled” room.

App. at 878-81. In Aetna’s Employability and Impairment Summary Form, Dr. Geist

responded “N/A” to the form’s inquiry about the employee’s ability to return to work with

or without modification. In response to the portion of the form that stated “[n]ot able to

return to any gainful work at this time, [m]y prognosis for his/her return to some type of

employment is,” Dr. Geist wrote “pending removal of femoral rod.” Id. at 876-77. In a

supplemental letter dated February 11, 2004, Dr. Geist reported that “the longest

[Michaels] can sit reasonably at one time is 30-60 min[utes], and then the pain from the

rod tip becomes severe.” Id. at 888-89.

       In a meeting in April 2004, the Committee concluded that Michaels was disabled

due to his “major depression” and, accordingly, that he was no longer eligible for



                                             7
benefits. App. at 621. The Committee also determined that Michaels’s physical

impairments did not render him totally disabled and that he was capable of performing

sedentary work. In doing so, the Committee characterized Dr. Geist’s IME as indicating

that “Michaels is capable of performing a short-term sedentary occupation and . . . such a

job would need to provide [him] the opportunity to alternate sitting and standing every

half-hour and to be situated in an environmentally controlled room.” Id. at 622. As a

result, the Committee upheld Aetna’s denial of benefits based on its finding that Michaels

was not physically disabled under the terms of the Plan.

       Michaels filed suit in the District Court on July 9, 2004, alleging that Equitable’s

denial of benefits violated the terms of the Plan and constituted a breach of a fiduciary

duty. Both parties agreed that the District Court should decided this matter without a jury

on the basis of the administrative record. App. at 945. On October 15, 2007, the District

Court affirmed Equitable’s denial of long-term disability benefits and denied Michaels’s

claim for relief. Michaels v. Equitable Life Assurance Society of the United States

Employees, Managers, and Agents Long-Term Disability Plan et al., No. 04-CV-3250,

2007 WL3024571 (E.D. Pa. Oct. 15, 2007). Michaels filed a notice of appeal of the

District Court decision on November 5, 2007.

                                       II. Jurisdiction

       The District Court exercised subject matter jurisdiction over Michaels’s claim for

recovery of plan benefits provided by ERISA pursuant to 28 U.S.C. § 1331 and 29 U.S.C.



                                              8
§ 1132(e)-(f). This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                        III. Analysis

                                   A. Standard of Review

       This Court exercises plenary review of the District Court’s decision to affirm

Equitable’s denial of long-term disability benefits and applies the same standard as the

District Court applied. Smathers v. Multi-Tool, Inc., 298 F.3d 191, 194 (3d Cir. 2002). In

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court provided

that, based on principles of trust law, the denial of benefits under 29 U.S.C. § 1132(a) is

subject to de novo review unless the plan at issue “gives the administrator . . .

discretionary authority to determine eligibility for benefits or to construe the terms of the

plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where, as here,

the plan grants its administrator discretionary authority to determine eligibility for

benefits or to construe the plan’s terms, this Court reviews the denial of ERISA benefits

under an arbitrary and capricious standard. Post v. Hartford Ins. Co., 501 F.3d 154, 161

(3d Cir. 2007); Smathers, 298 F.3d at 194-95; Pinto v. Reliance Standard Life Ins. Co.,

214 F.3d 377, 378 (3d Cir. 2000); see also Firestone Tire, 489 U.S. at 115 (noting in

dictum that where plan vests administrator with discretion, the denial of benefits should

be reviewed for an abuse of discretion). Accordingly, the arbitrary and capricious

standard of review applies to this appeal. Under this standard, the plan administrator’s

decision will stand unless “‘it is clearly not supported by the evidence in the record or the



                                              9
administrator has failed to comply with the procedures required by the plan.’” Smathers,

298 F.3d at 199-200 (quoting Orvosh v. Program of Group Ins. for Salaried Employees of

Volkswagen of Am., Inc., 222 F.3d 123, 129 (3d Cir. 2000)). To determine if a decision is

arbitrary and capricious, this Court must consider whether the administrator had a

reasonable basis for its decision. Id.

       Before the District Court, Michaels unsuccessfully argued for application of a

heightened version of the arbitrary and capricious standard based on case law from this

Court endorsing a heightened version of the standard where a plan administrator who

exercises discretionary authority has a conflict of interest. In particular, this precedent

provided that where the administrator was operating under a conflict of interest, the court

would apply a “sliding scale” to give the administrator’s decision less deference as the

severity of the conflict of interest rises. Pinto, 214 F.3d at 393. The District Court

concluded that “the structural and procedural circumstances present [did] not call for a

heightened form of arbitrary and capricious review” and cited Abnathya v. Hoffman-

LaRoche, Inc., 2 F.3d 40, 45 n.5 (3d Cir. 1993), as finding that a similarly structured plan 5



       5
         Aetna administers the Plan and makes initial determinations of eligibility for
benefits. Benefits payments are taken from an independent trust funded by the employer,
Equitable, and benefits payments are not funded on a case-by-case basis. Michaels, 2007
WL3024571, at *6; App. at A187-88. In Abnathya, this Court examined a plan in which
the employer acted as the administrator of an employee benefits plan. Under that plan, the
employer regularly paid into a fund that was held by a trustee, and the fund’s proceeds
could only be used for the benefit of plan members; this Court concluded that any conflict
that existed was “not significant enough to require special attention or a more stringent
standard of review.” Abnathya, 2 F.3d at 45 n.5.

                                              10
did not present a conflict. App. at A18.

       Since the District Court decision, however, the Supreme Court has provided

guidance as to how courts should approach potential conflicts of interest. Addressing a

plan that vested discretion in an insurance company with a dual status as administrator

and payer of benefits, the Supreme Court concluded that such a plan created the type of

conflict of interest that informed the abuse of discretion inquiry, even though that conflict

was “less clear” than if the employer funded the plan and evaluated claims. Metropolitan

Life Ins. Co. v. Glenn, --- U.S. ---, 128 S. Ct. 2343, 2346, 2348-49 (2008); but see

Smathers, 298 F.3d at 197 (“[W]e have explained that the risk of a conflict of interest is

decreased where the administrator and funder of the plan is the employer, rather than an

insurance company, because the employer has ‘incentives to avoid the loss of morale and

higher wage demands that could result from denials of benefits’ suggesting that there is at

least some counter to the incentive not to pay claims.” (quoting Nazay v. Miller, 949 F.2d

1323, 1335 (3d Cir. 1991))). Further, the Court observed that a plan administrator’s

potential conflict of interest should constitute just one factor in evaluating whether there

was an abuse of discretion in the decision-making process—it should not trigger a change

in the standard of review. Glenn, 128 S. Ct. at 2350 (“We do not believe that Firestone’s

statement implies a change in the standard of review, say, from deferential to de novo

review.”); see also Firestone, 489 U.S. at 115 (concluding that when an administrator

entrusted with discretionary authority is operating under a conflict of interest, that conflict



                                              11
must be “weighed as a ‘factor in determining whether there is an abuse of discretion’”

(quoting Restatement (Second) of Trusts § 187, cmt. d (1959))). Thus, under Glenn, a

plan administrator’s conflict of interest would not give rise to a heightened version of the

arbitrary and capricious standard of review; instead, that conflict would represent one of

several factors that informed the inquiry as to whether the administrator abused its

discretion. Glenn, 128 S. Ct. at 2351 (“We believe that Firestone means what the word

‘factor’ implies, namely, that when judges review the lawfulness of benefit denials, they

will often take account of several different considerations of which a conflict of interest is

one.”). As a result, Michaels abandoned his argument for application of a heightened

version of the arbitrary and capricious standard of review on appeal.

                   B. Termination of Benefits After Twenty-Four Months

       Under the Plan, after the first twenty-four-month period of total disability, a

claimant is eligible for benefits if he is “unable to engage in any gainful occupation for

which [he is], or may reasonably become, qualified by education, training or experience.”

App. at A152. Further, Equitable’s SPD provided that “a period of total disability will end

after 24 months of receiving disability benefits if it is determined that the disability arises

from or on account of . . . a mental condition described in the most current edition of the

Diagnostic and Statistical Manual of Mental Disorders.” Id. Michaels asserts that these

provisions mean that if his physical disability precludes him from engaging in any gainful

occupation, he should continue to receive disability benefits under the Plan. Appellant’s



                                              12
Br. at 14.

       The District Court observed that Michaels “would have only been entitled to

recertification of the period of disability if he satisfied the ‘any occupation’ definition

based solely on his physical condition.” Michaels, 2007 WL 3024571, at *11. The District

Court’s statement could be interpreted several different ways. If it means that a totally

disabling physical disability would allow recovery of benefits regardless of a mental

disability, then the District Court was correct. If it means that any mental condition

renders Michaels ineligible for benefits, regardless of the existence of a totally disabling

physical disability, we believe the District Court used the wrong standard.

       Equitable interprets the District Court’s statement to mean that “Michaels would

be entitled to benefits if his disability were due only to his physical condition.” Appellees’

Br. at 9. We believe that the standard advocated by Equitable misconstrues the Plan.

Under Equitable’s interpretation, if Michaels were physically and mentally disabled, and

his physical disability alone were sufficient to render him unable to engage in any gainful

occupation, he would be barred from receiving benefits because his disability would not

be due only to his physical condition. By limiting benefits for disability arising from a

mental condition, however, the Plan implicitly permits benefits to continue beyond

twenty-four months where eligibility arises from something other than a mental condition.

       The view that this Plan’s limitation on benefits applies if a mental condition exists,

notwithstanding the presence of a totally disabling physical condition, is plainly



                                              13
unreasonable and undermined by Equitable’s conduct.6 Equitable’s interpretation would

lead to the absurd result of rendering Michaels’s physical condition completely irrelevant,

as the presence of any mental condition would negate the effect of total physical

disability. Indeed, at oral argument counsel for Equitable acknowledged that, under its

interpretation of the Plan’s twenty-four-month limitation, if an accident caused an

individual to become a totally disabled quadriplegic, and that individual subsequently

developed depression, that individual would be barred from receiving benefits after

twenty-four months notwithstanding his total physical disability. Under this view, a

physically disabled claimant’s subsequent development of a mental condition acts as a

penalty; such a result is unreasonable and unduly harsh without a clear statement in the

Plan that the presence of any mental condition renders void a claimant’s eligibility for

benefits. Here, the Plan merely provided that “a period of total disability will end after 24

months of receiving disability benefits if it is determined that the disability arises from or

on account of . . . a mental condition described in the most current edition of the

Diagnostic and Statistical Manual of Mental Disorders.” This language fails to put

participants on notice that any mental condition, no matter how slight, bars the recovery



       6
         As Michaels’s brief points out, following Michaels’s second appeal of his
benefits denial, the Plan requested an orthopedic independent medical examination
(“IME”). If Equitable believed, as it now argues, that its Plan limited benefits after
twenty-four months where a claimant has any mental condition, there would be no need to
order an orthopedic examination. In requesting this examination, the Committee charged
with evaluating the appeal sought the examination to “determine if his physical condition
is such that he is eligible to receive benefits.” App. at 778.

                                              14
of benefits after twenty-four months.

       The difference in the language of Equitable’s SPD and MDP is instructive. While

the SPD limits eligibility for benefits to twenty-four months if disability “arises from or

on account of” a mental condition, the MDP provides that a period of disability “will end

after 24 months if Aetna determines that the disability is, at any time caused to any extent

by a mental condition.” App. at 749-50 (emphasis added). The MDP illustrates the

position that Equitable now advocates—after twenty-four months, unless a disability is

exclusively physical in nature, the claimant is barred from receiving benefits. The SPD,

which applies to Michaels’s claim, stops short of requiring such a showing.

       We hold that, under the terms of Equitable’s Plan, if a claimant were totally

disabled, and his physical disability were independently sufficient to render him totally

disabled, his eligibility for benefits would not terminate after twenty-four months because

the claimant also suffered from a mental condition. If a disabled claimant suffered from

both mental and physical conditions, neither of which were independently debilitating

under the Plan, and the combined effect of those conditions rendered the claimant totally

disabled, the administrator would have discretion to determine the claimant’s eligibility

for benefits beyond twenty-four months. Thus, for Michaels to receive benefits beyond

twenty-four months under Equitable’s Plan, he would have to show that, by itself, his

physical disability precluded him from engaging in any gainful occupation, regardless of

any concurrent mental condition. The record contains facts which could support such a



                                             15
finding, as detailed infra.

                     C. Ability to Engage in “Any Gainful Occupation”

       Michaels alleges that the administrator’s finding that he was able to engage in “any

gainful occupation” constituted an abuse of discretion. As the District Court noted,

Aetna’s grant of long-term disability benefits in November 1999 “did not indicate the

medical basis for awarding benefits.” Michaels, 2007 WL 3024571, at *2. The failure to

identify the basis for Michaels’s eligibility for disability suggests that Michaels may have

been able to establish total disability based on either his mental condition or his physical

condition. As to Michaels’s physical condition, the District Court found that “the

determination that Plaintiff could engage in ‘any reasonable occupation’ . . . is not

‘clearly unsupported’ in the record,” noting that “[b]oth Dr. Geist’s and Dr. Taiwo’s

reports conclude that Plaintiff would be able to engage in at least some sedentary work.”

Id. at *11. In making this finding, the District Court misstated 7 Dr. Geist’s conclusion,

which indicated that Michaels was “capable of performing, at most, short-term sedentary

work.” Id. (emphasis added). Further, the District Court may have ignored other evidence

in the record that supports a finding of Michaels’s inability to engage in any gainful

occupation based on his physical disability. For example, an entry in Aetna’s file on




       7
         Although the District Court pointed out that Dr. Geist’s reports did not state that
Michaels was “unable to work at all,” Dr. Geist’s responses to the Employability and
Impairment Summary Form did report an inability to return to work without the removal
of the femoral rod.

                                             16
Michaels dated September 25, 2000 states that “[b]ased on updated clinical information

involving [his] persistent pain in the left hip region and possibility of surgical removal of

[the] titanium rod, . . . [Michaels] is unable to perform the essential functions of any job.”

App. at 915.

       Two orthopedic specialists, Dr. Katz and Dr. Geist, met with Michaels about his

physical condition. Throughout treatment, Dr. Katz observed that Michaels experienced

“persistent” and “severe” pain resulting from the “prominence of the internal fixation

rod.” App. at 702-03. Dr. Katz recorded “essentially no improvement” over the course of

treatment and regularly indicated that Michaels experienced “difficulty with ambulation

and stair-climbing as well as a sensation of ‘being off balance.’” Id. Dr. Katz further

documented Michaels’s “difficulty with sitting for long periods of time” and “difficulty

with standing for long periods of time.” Dr. Katz and Michaels discussed the possible

surgical removal of the rod, but Dr. Katz explained that “there are no guarantees with

removal of the rod and . . . the symptoms may persist even though the rod is removed.” Id.

As to Michaels’s ability to work, Dr. Katz pointed to his diminished capacity to function

in his own job but declined to express a definitive opinion as to whether Michaels could

engage in any occupation, opting instead to describe Michaels’s return to work as “to be

determined” or “unknown.” Id. at 697. Dr. Geist described Michaels’s medical diagnosis

as “poor” and stated that “[h]e is unlikely to be able to resume his previous work status”

and that “[h]e would be eligible, at most, for part-time sedentary work.” Id. at 880.



                                              17
Further, Dr. Geist wrote “N/A” in response to a form inquiry as to Michaels’s ability to

return to work with or without modification and responded to the prompt “[n]ot able to

return to any gainful work at this time, [m]y prognosis for his/her return to some time of

employment is” by writing “pending removal of femoral rod.” Id. at 876-77.

       Thus, of the two doctors who physically examined Michaels, one concluded that

his ability to return to work was “unknown.” The other characterized Michaels’s ability to

return to work with or without accommodation as “N/A” and responded to the statement

“not able to return to any gainful work at this time” by writing “pending removal of

femoral rod.” Finally, the second examining doctor stated that “at most” Michaels could

work two hours per day in a sedentary position.

       When Michaels appealed the denial of his benefits, Aetna and MetLife solicited

further information from two medical professionals, Dr. Taiwo and an unidentified

Independent Physician Consultant. Although neither of these doctors examined Michaels,

the administrator gave determining weight to their conclusions Michaels was not

physically disabled.

       For example, in making its final eligibility determination, the Committee solicited

input from MetLife. MetLife responded that its Independent Physician Consultant “felt

that Dr. Geist’s restrictions/limitations and opinion that Mr. Michael’s [sic] would be

eligible, at most, for part-time sedentary work was not consistent with the IME physical

examination findings.” App. at 895-96. MetLife stated that its Independent Physician



                                            18
Consultant, whose identity and qualifications are never disclosed beyond an asserted

specialty in Physical Medicine and Rehabilitation, asked Dr. Geist several follow-up

questions. In response to its question of why his findings would limit Michaels to part-

time work, the Independent Physician Consultant characterized Dr. Geist’s response as

follows:

              Dr. Geist indicated that the longest Mr. Michaels could sit is 30-60
       minutes. This is based on the patient’s pain over the posterial left hip due to
       the prominence of the intermedullary rod. Dr. Geist goes on to say this is
       unlikely to change unless the rod is removed. He then states there was no
       assurance that the removal of the rod would relieve the symptoms.
              Our [Independent Physician Consultant] felt that this was contradictory and
       the pain is subjective.

App. at 896. MetLife’s Independent Physician Consultant stated that “Mr. Michaels [sic]

subjective complaints of pain and the inactivity of his upper extremities seem to be the

major factors in preventing him from work” and that “there is a lack of objective clinical

evidence to support a total disabling condition.” Id. at 896. Accordingly, the Independent

Physician Consultant opined that Michaels did not qualify for long-term benefits. Id. at

896-97.

       Administrators of ERISA plans need not afford special deference to the claimant’s

treating physician,8 and, in Black & Decker Disability Plan v. Nord, the Supreme Court



       8
         The Supreme Court’s decision in Black & Decker Disability Plan v. Nord, 538
U.S. 822, 831 (2003), makes clear that no special deference is owed to the opinions of
treating physicians when considering the denial of benefits under ERISA. 538 U.S. at
834. A few years before Nord, this Court concluded that an administrator’s decision to
terminate benefits was not arbitrary and capricious where it was based on the

                                            19
stated that “courts have no warrant to require administrators to accord special weight to

the opinions of a claimant’s physician” and 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. 822, 834 (2003). The Supreme Court

continued, however, that administrators “may not arbitrarily refuse to credit a claimant’s

reliable evidence, including the opinions of a treating physician.” Id.; see also Evans v.

UnumProvident Corp., 434 F.3d 866, 877 (6th Cir. 2006) (“The Supreme Court

nonetheless admonished that ‘[p]lan administrators . . . may not arbitrarily refuse to credit

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

Nord, 538 U.S. at 834)). Thus, the Committee was not obligated to give “special weight”

to the assessments of Dr. Katz or Dr. Geist, the Plan’s appointed orthopedist; at the same

time, it could not “arbitrarily refuse to credit [Michaels’s] reliable evidence, including the

opinions of . . . treating physician[s].” Id.

       We must set aside the District Court’s decision to affirm Equitable’s denial of

benefits. The District Court may have applied the wrong standard, and, in addition, it



recommendations of its physicians and health care workers despite the view of the
claimant’s treating physician that the claimant was totally disabled. Orvosh v. Program of
Group Ins. for Salaried Employees of Volkswagen of Am., Inc., 222 F.3d 123, 127-31 (3d
Cir. 2000); see also Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 812 (7th Cir. 2006)
(noting deferential nature of arbitrary and capricious standard); Slomcenski v. Citibank,
N.A., 432 F.3d 1271, 1279-80 (11th Cir. 2005) (“Giving more weight to the opinions of
some experts than to the opinions of other experts is an not arbitrary or capricious
practice.”). Because the language in the Supreme Court’s subsequent decision in Nord is
controlling, we focus on that decision.

                                                20
appears to have discredited substantial evidence that Michaels’s physical condition

rendered him unable to engage in any gainful occupation when the Court concluded that

Equitable’s denial of benefits was not clearly unsupported by the facts.

D. Application of Twenty-Four Month Limitation Where Mental Condition Has Physical
                                      Cause

       Michaels further argues that his mental conditions, bipolar disorder and

depression, stem solely from his physical condition and that, as a result, the twenty-four

month limitation on benefits should not apply because his physical condition served as the

precipitating cause of his disability. This Court has never addressed the significance, if

any, of the etiology of a mental disorder in determining benefits. The courts of appeals

are divided as to whether a disability plan’s mental disorder limitation applies where a

mental condition has a physical cause. The District Court considered this issue and agreed

with those courts that have applied the limitation on benefits when the claimant’s physical

injury or condition caused his mental condition. Michaels, 2007 WL3024571, at *10; see

also Fuller v. J.P. Morgan & Co., 423 F.3d 104, 107 (2d Cir. 2005) (considering

claimant’s argument that her bipolar disorder arises from a physical condition, namely a

chemical imbalance, and finding that the question of “whether Fuller’s ‘disability’ ‘arises

from’ a mental disorder” to be “quite distinct from whether the disorder itself arises from

a physical cause”); Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir. 1998)

(reiterating earlier holding that “depression is a ‘mental disorder,’ irrespective of its

physical causes or symptoms”); but see Lang v. Long-term Disability Plan of Sponsor

                                              21
Applied Remote Tech., Inc., 125 F.3d 794, 799 (9th Cir. 1997) (interpreting plan

limitation for disability “caused or contributed to” by “mental disorder” and finding that

depression resulting from physical disorder did not constitute a mental disorder).

       We agree with the District Court that Equitable did not act arbitrarily and

capriciously in taking the position that the twenty-four month limitation could apply even

if the disabling mental conditions were precipitated by a physical injury. As the Second

Circuit observed in Fuller, the Plan’s focus on whether the “disability” arises from a

mental disorder presents a different question than whether the claimant’s “disorder” was

caused by a physical ailment. See Fuller, 423 F.3d at 107. That Michaels’s depression

and bipolar disorder appear to have been caused, or at least exacerbated,9 by his physical

injury does not change the characterization of these disorders as mental conditions.10

Accordingly, if a claimant is mentally disabled, the source of that mental condition does

not affect the applicability of a plan’s limitation on benefits. Nevertheless, to the extent


       9
        At oral argument, counsel for Michaels asserted that Michaels’s did not have any
mental condition before his injury-causing accident. This assertion is undermined by the
record, which includes references made by Dr. Hiebel to Michaels’s preexisting mental
problems. App. at 427 (“Though bright, creative, and successful for years, it appears that
Mr. Michaels manifested signs of emotional problems dating back several years, none of
which were incapacitating . . . . His past behavioral patterns indicate that he had
cyclothymic tendencies, but he never experienced a full emotional breakdown.”); id. at
454 (“He describes mood swings through much of his life.”).
       10
         Indeed, the inclusion of bipolar disorder and depression as mental conditions in
the Diagnostic and Statistical Manual of Mental Disorders lends further support. The Plan
expressly incorporated “the current edition of the Diagnostic and Statistical Manual of
Mental Disorders published by the American Psychiatric Association” into the
determination of whether a disability arises from a “mental condition.” App. at 152.

                                              22
that the claimant can demonstrate that his physical disability independently precludes him

from engaging in any gainful occupation, he may still be eligible for benefits under the

Plan.

                                      IV. Conclusion

        We have considered all other arguments made by the parties on appeal and

conclude that no further discussion is necessary. For the above reasons, we will vacate

the decision of the District Court and remand for further consideration consistent with this

Opinion.




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