                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-2457
                                  ___________

Billy Harden,                         *
                                      *
            Appellant,                *
                                      * Appeal from the United States
       v.                             * District Court for the Eastern
                                      * District of Arkansas.
American Express Financial            *
Corporation, doing business as        *      [PUBLISHED]
American Express Financial            *
Advisors; American Express            *
Financial Corporation (AEFA) Long     *
Term Disability Plan; Metropolitan    *
Life Insurance Company; John Does, *
1 through 50,                         *
                                      *
            Appellees.                *
                                 ___________

                             Submitted: March 29, 2004
                                 Filed: September 10, 2004
                                 ___________

Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       This appeal arises under the Employee Retirement Income Security Act
(ERISA). Metropolitan Life Insurance Company (MetLife) denied Harden long-term
disability (LTD) benefits under his former employer’s ERISA plan. Harden later
brought this action claiming that MetLife abused its discretion in denying benefits.
The district court granted MetLife’s motion for summary judgment. After de novo
review, see Shelton v. ContiGroup Cos., 285 F.3d 640, 642 (8th Cir. 2002), we
reverse and remand.

       Harden worked for American Express Financial Corporation (AmEx) from
May 1992 until December 31, 1999, when he quit his job as a financial advisor due
to cardiac and other physical problems, and stress-related mental problems. Harden,
then 62 years old, applied for Social Security disability benefits and ERISA LTD
benefits starting on January 1, 2000. Harden indicated that he had had two heart
surgeries and could no longer tolerate the stress associated with financial planning,
and that he had become too “shaky” to fill out clients’ paperwork. Harden was
granted Social Security benefits, but AmEx’s LTD plan administrator, MetLife,
denied Harden LTD benefits initially and on appeal.

       In this appeal from the district court’s grant of summary judgment to MetLife,
Harden argues (1) MetLife’s administrative record was not competent evidence
because it was unsworn and uncertified, and no witness provided a foundation; (2)
defendants breached their fiduciary duty to him by not obtaining or considering
records unfavorable to their decision, even though Harden had signed releases for all
records including Social Security records; (3) MetLife used arbitrary and capricious
criteria in denying benefits; and (4) the court was required to review MetLife’s
decision de novo because MetLife’s reliance on the opinion of its reviewing
physician created a conflict of interest.

      In making its decision, MetLife relied exclusively on medical records from the
doctors whom Harden had listed as treating physicians. These records indicated that
Harden had a stable heart condition and an undiagnosed neurological problem which
caused tremors, and that Harden was able to engage in only limited stress situations
and interpersonal relations.



                                        -2-
       Harden believed that MetLife was also considering his Social Security medical
records, because MetLife had required Harden to apply for Social Security benefits
in conjunction with his application for LTD benefits. (Appellee’s App. at 371, 375.)
Harden applied and, again at Met Life’s request, Harden submitted to MetLife a
specific authorization for release of his Social Security medical documents. (Id. at
368.)

       During the administrative appeal process, Harden requested that MetLife tell
him which medical records they had obtained and were relying on, but MetLife failed
to respond. MetLife did tell him, however, that it had reviewed “[a]ll available
documentation,” and it provided a list which MetLife itself said was not necessarily
all-inclusive. Because Harden had signed the necessary release to make his Social
Security medical documents available to MetLife, we believe it was more than
reasonable for Harden to believe that MetLife had in fact obtained those “available”
records and that they were part of the documentation that had been reviewed,
although not specifically listed. Thus, unbeknownst to Harden, the administrative
record did not contain the Social Security records that were the basis of the Social
Security Administration’s grant of benefits to him.

      Other items in the record also indicate that Harden was justified in believing
that MetLife had obtained the Social Security medical documents. In its January 29,
2001 letter denying Harden’s appeal, MetLife acknowledged Harden’s Social
Security award. MetLife’s letter included the following language:

            Please be advised that the approval or denial of Social
            Security disability benefits does not guarantee the approval
            or denial of Long Term Disability benefits under the
            American Express LTD plan. Medical evidence of a
            disability must be satisfactory to MetLife substantiating a
            disability as defined in the group plan.



                                        -3-
(Id. at 101.) Clearly, the letter did not indicate that the Social Security medical
documents had not been a part of the record before MetLife. Later, in a letter to
Harden’s attorney on September 4, 2001, MetLife again indicated that it knew that
Harden had been granted Social Security disability benefits but stated that the award
did not prompt MetLife to change its findings. (Id. at 95.) We also note that Harden
filled out other medical release forms for medical records from individual physicians.
(Id. at 339-40). MetLife did contact these physicians to request medical records. (Id.
at 156, 351). In one case, MetLife even went so far as to use the Internet to find the
contact information for a physician. (Id. at 351.) The fact that MetLife used the
release forms Harden provided to request medical records from these physicians but
did not do so for the Social Security documents – even though MetLife specifically
required Harden to apply for Social Security benefits – further demonstrates that
Harden was justified in believing that MetLife had received the Social Security
medical documents.

       In the limited circumstances of this case, we conclude that MetLife’s failure to
obtain the Social Security records amounted to a serious procedural irregularity that
raises significant doubts about MetLife’s decision. Therefore, while MetLife’s
decision would normally be subject to abuse-of-discretion review--given MetLife’s
discretion under the plan to decide whether Harden was totally disabled, see Delta
Family-Care Disability & Survivorship Plan v. Marshall, 258 F.3d 834, 840 (8th Cir.
2001), cert. denied, 534 U.S. 1162 (2002)--we conclude that the district court should
have applied a less deferential sliding-scale standard of review, see Shelton, 285 F.3d
at 642 (court may apply less deferential standard of review if plaintiff presents
evidence demonstrating palpable conflict of interest or serious procedural irregularity
that caused breach of plan administrator’s fiduciary duty to plaintiff); Woo v. Deluxe
Corp., 144 F.3d 1157, 1161-62 (1998) (adopting sliding-scale standard of review
where less deferential standard is appropriate).




                                         -4-
       MetLife’s failure to obtain and consider the Social Security records, after
leading Harden to believe that it would, coupled with evidence before MetLife which
supports a finding that Harden is disabled, calls for a remand to MetLife to reconsider
its decision. Contrary to the dissent’s assertion, we do not hold that a plan
administrator has the same independent duty to develop the record that a Social
Security administrative law judge does. As we noted above, our holding is limited
to the facts of this case where the plan administrator led the claimant to believe that
certain medical records were being considered when they were not. We note that
MetLife does not contest the relevance of the omitted records.

       Accordingly, we reverse and remand. The district court is directed to remand
the case to MetLife with instructions to reopen the administrative record, obtain and
review the Social Security records, and make a new determination of the claim,
exercising the discretion given to it by the plan. Cf. Shelton, 285 F.3d at 644
(remanding to district court, and directing court to remand case to administrative
committee); Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 n.6 (4th Cir.
1993) (district court may remand case to plan administrator). We, of course, make
no intimation concerning whether or not Harden should be awarded the benefits he
seeks.

      Because of our disposition of this case, we conclude it is not necessary to
address Harden’s remaining arguments.

COLLOTON, Circuit Judge, dissenting.

     The crux of Billy Harden's claim on appeal is that Metropolitan Life Insurance
Company ("MetLife"), in determining Harden's eligibility for benefits under his
employer's long term disability plan ("Plan"), should have considered reports of Dr.
Jim Aukestuolis, a psychiatrist who examined Harden and opined on his condition.
Harden asserts that the Aukestuolis reports, which were included in a file considered

                                         -5-
by the Social Security Administration for its separate decision on government
disability benefits, would have demonstrated that Harden is "totally disabled" under
the Plan.

       I agree with the district court that Harden had ample opportunity to make the
Aukestuolis reports part of the administrative record, and that the absence of those
reports from the record is fairly attributable to Harden and his counsel, rather than to
a "serious procedural irregularity" committed by MetLife. See Buttram v. Central
States, S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896, 900 (8th Cir. 1996)
(requirements for heightened review of administrator's decision). I do not believe that
MetLife had an independent duty to develop the administrative record by obtaining
records from the Social Security Administration, and I respectfully dissent.

       Harden filed his claim for long term disability benefits with MetLife on March
12, 2000. The claim form required that he "list all healthcare providers from current
to past." Harden listed five physicians, but did not include Dr. Aukestuolis. (App.
339).1 A more detailed form entitled "Activities of Daily Living" asked Harden to
describe his present condition, including "any physical and/or
psychiatric/psychological limitations," and to "list all Attending Physicians and
Specialists to which you have been referred for this condition." Harden listed five
physicians on this form, but did not mention Dr. Aukestuolis. (App. 345). On that
same date, Harden also signed two authorizations to release medical records: an
"authorization to furnish medical information," which permitted any physician or
provider of medical services to furnish records to MetLife (App. 340), and "an
authorization to secure award or disallowance information," which allowed the Social
Security Administration to release medical information and award notices to MetLife.
(App. 341).



      1
       Citations to the appendix refer to the separate appendix filed by appellees.

                                          -6-
       Six months later, on September 19, 2000, MetLife informed Harden in writing
that his claim for long term disability benefits was denied, because it did not meet the
criteria set forth in the Plan. With respect to the administrative record, the letter
stated:

      All available documentation has been carefully reviewed. These records
      include, but are not necessarily limited to, the following:

             •      Attending Physician Statement completed
                    by Dr. William Fiser                    July 21, 2000
             •      Attending Physician Statement completed
                    by Dr. Charles Barg                     July 20, 2000
             •      Head-up tilt test                       May 22, 2000
             •      Office notes from Dr. Hicks

(App. 51). The denial letter advised Harden that he "may request a review of the
claim in writing," and said, "You may also submit additional medical or vocational
information and any facts, data, questions or comments you deem appropriate for us
to give your appeal proper consideration." (App. 52).

       Harden's counsel then wrote to MetLife on November 21, 2000, and stated that
Harden would appeal the decision. Counsel's letter stated that "[a]dditional medical
and/or vocational information will be submitted for your review," and requested that
MetLife "[p]lease furnish us copies of the medical reports upon which you relied in
making your decision." (App. 148). MetLife acknowledged the appeal letter with a
return letter dated the very next day, and advised Harden's counsel that "[a]ny new
information that you wish to have considered in this appeal must be received in our
office no later than December 14, 2000. If no further information is received, Mr.
Harden's file will be reviewed by our Appeal Unit with the information currently on
file." (App. 150) (emphasis in original).




                                          -7-
       Harden's counsel submitted a vocational assessment to MetLife on December
6, 2000, but never submitted any records from Dr. Aukestuolis or any other medical
professional to augment those listed in MetLife's denial letter of September 19, 2000.
On January 29, 2001, MetLife notified Harden that his appeal was denied. The
appeal decision noted that MetLife had "received additional vocational information
to review," but "did not receive any additional medical information to review as part
of the appeal." (App. 11).

       I respectfully disagree that MetLife's "failure to obtain the Social Security
records amounted to a serious procedural irregularity" that justifies heightened review
of the administrator's decision, and a remand to the administrator for further
proceedings. Harden failed to list Dr. Aukestuolis as a treating physician on either
of the claim forms that requested the names of all health care providers. MetLife
listed in its denial letter of September 19 medical records upon which it relied in
making the benefit determination, and records from Dr. Aukestuolis were not
included. MetLife notified Harden twice that he could submit any additional medical
information that he wished the administrator to consider on appeal.

        A reasonable claimant, particularly one represented by counsel, should have
known to submit additional medical records that were not listed in MetLife's denial
letter if he wanted to ensure that the records were considered. Indeed, Harden's
counsel even advised MetLife that Harden would submit additional medical
information, but then failed to do so. If Harden and his counsel decided to assume
that MetLife was considering other medical records that were not listed in the denial
letter, simply because Mr. Harden had signed a general release of Social Security
information six months earlier, then that strikes me as an unreasonable decision by
the claimant and his counsel, rather than a serious procedural irregularity by the
administrator.




                                         -8-
       As the court's own observations show, ante at 4, this is not a case where
MetLife buried its head in the sand in an effort to avoid an award of benefits. The
record demonstrates that if Mr. Harden merely had listed Dr. Aukestuolis's name on
either of the two claim forms calling for "all health care providers" or "all Attending
Physicians and Specialists," respectively, or in response to either of the two follow-up
invitations to submit additional medical information, then MetLife would have made
diligent efforts to locate the doctor and obtain his evaluation of the claimant. Even
viewing Harden's position through the court's charitable lens,2 therefore, the most that
can be said is that MetLife had an honest misunderstanding about whether it could
expect Harden to provide the names of all treating physicians on claim forms that
asked him to list all treating physicians. A decision to set aside the administrator's
decision under those circumstances cannot comfortably be squared with precedent
that calls for heightened review upon a showing that the administrator acted under a
conflict of interest, "dishonestly," based on "an improper motive," or after "failing to
use judgment," such that a denial of benefits was the result of "an arbitrary decision
or whim." Buttram, 76 F.3d at 900-01 (quoting Restatement (Second) of Trusts § 187
cmt. d (1959)).

      The Supreme Court recently made clear that rules regulating disability benefit
determinations under the Social Security program generally do not govern private
benefit plans under ERISA. Black & Decker Disability Plan v. Nord, 538 U.S. 822,
832-33 (2003). Just as ERISA does not require the plan administrator to accord
special deference to the opinions of treating physicians, or impose a heightened


      2
       Whatever may be said about the reasonableness of Mr. Harden's claim that
signing the Social Security release form led him to believe that MetLife would
consider records from Dr. Aukestuolis during the administrative review process,
Harden could not be misled in any relevant sense by correspondence that he received
from MetLife after the denial of his administrative appeal, ante at 3-4, which MetLife
said "constitute[d] the completion of the full and fair review required by the Plan[.]"
(App. 102).

                                          -9-
burden of explanation on administrators when they reject a treating physician's
opinion, id. at 834, ERISA does not require a plan administrator on its own initiative
to "develop the record" as though the administrator were an administrative law judge
in the Social Security Administration. Cf. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).

       Of course, the administrator must comply with its fiduciary duties to
beneficiaries under an ERISA plan, and heightened review applies if "the denial of
benefits was the result of arbitrary decision or whim." Buttram, 76 F.3d at 901. But
I find nothing in ERISA or the common law of trusts that prevents an administrator
from requiring an applicant to identify with a reasonable degree of specificity the
records that allegedly support his claim for benefits. Therefore, I respectfully dissent.
                        ______________________________




                                          -10-
