                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 08a0041p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                     X
                               Plaintiff-Appellant, -
 ADRIENNE BENNETT,
                                                      -
                                                      -
                                                      -
                                                          No. 06-2326
           v.
                                                      ,
                                                       >
 KEMPER NATIONAL SERVICES, INC.; LUMBERMENS           -
                                                      -
                                                      -
 MUTUAL CASUALTY COMPANY; BROADSPIRE

                                                      -
 SERVICES, INCORPORATED; PLATINUM EQUITY,

                            Defendants-Appellees. -
 L.L.C.,
                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Eastern District of Michigan at Detroit.
                    No. 05-72357—Julian A. Cook, Jr., District Judge.
                                           Argued: July 25, 2007
                                  Decided and Filed: January 23, 2008
              Before: MOORE and COOK, Circuit Judges; ADAMS, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Steve J. Weiss, HERTZ SCHRAM, Bloomfield Hills, Michigan, for Appellant. Peter
Petrakis, MECKLER, BULGER & TILSON, Chicago, Illinois, for Appellees. ON BRIEF: Steve
J. Weiss, Derek D. McLeod, HERTZ SCHRAM, Bloomfield Hills, Michigan, for Appellant. Peter
Petrakis, Rachel S. Urquhart, MECKLER, BULGER & TILSON, Chicago, Illinois, for Appellees.
        MOORE, J., delivered the opinion of the court, in which ADAMS, D. J., joined. COOK, J.
(pp. 9-11), delivered a separate opinion concurring in the judgment.
                                            _________________
                                                OPINION
                                            _________________
      KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Adrienne Bennett
(“Bennett”) filed an action under the Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1132, against Kemper National Services, Inc. (“Kemper”), Lumbermens Mutual

        *
          The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                       1
No. 06-2326             Bennett v. Kemper Nat’l Servs., Inc. et al.                          Page 2


Casualty Company (“Lumbermens”), Broadspire Services, Inc. (“Broadspire”), and Platinum Equity,
L.L.C. (“Platinum”) (collectively “defendants”) arguing that the decision to deny her long-term-
disability (“LTD”) benefits was arbitrary or capricious. The district court granted a judgment in
favor of the defendants, and Bennett appealed. Because we conclude that the decision to deny
benefits was not the result of a deliberate and principled reasoning process supported by substantial
evidence, we VACATE the judgment of the district court and REMAND with instructions to
remand to Broadspire for a full and fair review consistent with this opinion.
                                           I. BACKGROUND
       Bennett was employed as a project manager and master plumber by the Henry Ford Health
Systems (“HFHS”) until may 23, 2001 when, at the    age of 44, she went on disability leave due to
multiple sclerosis (“MS”) and related conditions.1 As an HFHS employee, Bennett participated in
the HFHS Short and Long Term Disability Plan (“Plan”).
        The Plan provided for an initial twenty-four months of paid disability if the disability
prevented Bennett from performing her own occupation. At the end of the twenty-four months, the
Plan paid benefits only if Bennett’s disability “prevented [her] from performing the Essential
Functions of any Gainful Occupation that [her] training, education and experience would allow [her]
to perform.” Joint Appendix (“J.A.”) at 131 (Plan at 10). At the time that Bennett initially applied
for benefits, the Plan was insured by Lumbermens and was administered by Kemper, a subsidiary
of Lumbermens.
        Bennett’s neurologist, Dr. Robert Lisak (“Lisak”) wrote a letter explaining that, due to
Bennett’s MS and respiratory infections, she should be off work indefinitely. Kemper asked
neurologist Dr. Gerald Goldberg (“Goldberg”) his opinion, and he agreed that the medical records
demonstrated that Bennett could not perform her own occupation. After a six-month mandatory
waiting period, Kemper approved LTD benefits for Bennett effective November 21, 2001. Kemper
also referred Bennett to Allsup, Inc. (“Allsup”), a company specializing in assisting people with
their applications for Social Security disability benefits. Kemper informed Bennett that she would
not have to pay for Allsup’s services, but that any LTD benefits would be reduced by the amount
of any Social Security disability benefits that she was awarded.
        Lisak examined Bennett on February 13, 2002, finding that she “continued to do poorly, but
mainly with depression and cognitive symptoms.” J.A. at 261 (Lisak Clinic Note 2/13/02). He
recommended that Bennett undergo “neuropsych testing to see how much of the problem is
depression, and if there is a significant amount of cognitive problem.” J.A. at 262 (Lisak Clinic
Note 2/13/02 at 2). In accordance with Lisak’s recommendation, on April 3, 2002, Bennett saw Dr.
P.A. Keenan (“Keenan”) who conducted a series of neuropsychological tests. Keenan noted that
Bennett exhibited variable degrees of motivation and effort in the tests, but stated that Bennett’s
“profile is more suggestive of depression than frank malingering, which was corroborated by
objective personality test results. Rather than a conscious attempt to feign cognitive symptoms for
monetary secondary gain, [] Bennett has presented as having difficulties adjusting to and accepting
the limitations associated with MS.” J.A. at 265 (Keenan Rpt. at 3). As the result of Bennett’s
inconsistent effort, Keenan was unable to determine her neuropsychological status.
        On Bennett’s visit on May 15, 2002, Lisak noted that her neurologic exam demonstrated “a
normal mental status.” J.A. at 268 (Lisak Clinic Note 5/15/02). According to Lisak, “[e]verything
[was] an effort and seem[ed] to take forever for her to do or answer,” but he did not believe it was
“a true apraxia.” Id. It took Bennett 14 seconds to walk 25 feet unassisted.


       1
           Bennett was originally diagnosed with MS in 1997 while employed by HFHS.
No. 06-2326           Bennett v. Kemper Nat’l Servs., Inc. et al.                             Page 3


        Bennett’s next visit to Lisak on November 11, 2002, revealed “an abnormal mental status.”
J.A. at 270 (Lisak Clinic Note 11/13/02). Lisak noted that he was unable to determine whether
Bennett was “showing secondary progression, or whether [it] continue[d] to be her depression.” J.A.
at 271 (Lisak Clinic Note 11/13/02 at 2). At this visit, it took Bennett 12 seconds to walk 25 feet.
        On December 21, 2002, Bennett was admitted to the emergency room for seizures. Bennett
was released from the hospital on December 26, whereupon she spent fifteen days in an in-patient
rehabilitation program. Her exam upon admission revealed quadriparesis and debility.
       Lisak filled out an “Attending Physician’s Statement” provided by Kemper on January 8,
2003. He indicated that Bennett’s physical impairment was “Class 4. Marked limitation of
functional capacity/capable of sedentary work.” J.A. at 286 (APS). Bennett’s mental impairment
was “Class 4 Marked limitation: unable to engage in stress or interpersonal relationships.” Id.
Lisak also indicated that Bennett could sit for only two hours of an eight-hour day and could not
continuously stand or walk for any length of time. According to the completed form, Bennett could
occasionally lift up to ten pounds and reach above shoulder level, and could never drive an
automobile. Lisak indicated that Bennett could not work part-time or full-time.
        Bennett’s next visit to Lisak on February 5, 2003, revealed a “normal mental status,” and an
“abnormal gait.” J.A. at 276 (Lisak Clinic Note 2/5/03). It took her 28.88 seconds to walk 25 feet.
In Lisak’s opinion, Bennett had experienced “a full-fledged relapse.” J.A. at 277 (Lisak Clinic Note
2/5/03).
        By June 25, 2003, Lisak reported that Bennett needed 70 seconds to walk 25 feet, and that
she was walking with a cane; however, he also reported that she was “back to driving.” J.A. at 282
(Lisak Clinic Note 6/25/03). He also described the results of Bennett’s recent MRI scan as showing
two new lesions in the hemispheres, with preexisting lesions unchanged or less prominent. The
lesion on her cervical spine was more prominent and obvious on T2, but it was not larger and there
was no enhancement. Lisak found that Bennett had experienced an unequivocal relapse; however,
he wondered whether there might be “psychologic reasons that it seemed to be as severe as it was.”
J.A. at 283 (Lisak Clinic Note 6/25/03 at 2).
        On July 11, 2003, Lisak filled out another “Attending Physician’s Statement” provided by
Kemper. He again indicated that Bennett’s physical and mental impairments were both Class 4; that
she could sit for only two hours of an eight-hour day, and could not continuously stand or walk for
any length of time; that she could occasionally lift up to ten pounds and reach above shoulder level,
that she could never drive an automobile; and that she could not work part-time or full-time.
        As the twenty-four month period for own-occupation disability benefits was drawing to a
close, Kemper began the process of determining whether Bennett was qualified for LTD under the
any-occupation standard. Although the Plan entitled Kemper to require Bennett to submit to a
physical examination by a Kemper-approved physician, Kemper instead chose to rely on peer
reviews of Bennett’s medical files. Both Goldberg and clinical neuropsychologist, Dr. Elana
Mendelssohn conducted the initial file reviews in July 2003, and both determined that the records
failed to support a finding of a functional impairment that precluded Bennett from working.
       Goldberg summarized the Lisak and Keenan files, and concluded that Bennett did have MS
and accompanying physical impairments. However, he also found “inconsistencies in her
examination.” J.A. at 321 (Goldberg Rpt. at 4). According to Goldberg, “[i]n [Lisak’s] Attending
Physician’s Statement he did indicate an impairment that would be consistent with sedentary work.
The objective data overall does not indicate a functional impairment that would preclude the
claimant from either doing her own job or working at any job, particularly in a sedentary capacity.”
Id. Goldberg indicated that he believed “[r]easonable restrictions and limitations would include not
No. 06-2326           Bennett v. Kemper Nat’l Servs., Inc. et al.                             Page 4


working at any unprotected heights or driving automotive equipment in the workplace or doing
excessive walking or standing.” Id.
       Mendelssohn noted that “Lisak indicated that the claimant’s reported relapse in her [MS] had
an underlying psychological component,” but that Bennett had denied that she was depressed. J.A.
at 316 (Mendelssohn Rpt. at 2). Citing the inconclusive results from Keenan’s examination of
Bennett, Mendelssohn concluded that there was “no recent objective examination findings
documenting a severity and intensity of cognitive difficulties that would preclude work,” including
Bennett’s own occupation. J.A. at 317 (Mendelssohn Rpt. at 3).
        Relying on the Goldberg and Mendelssohn file reviews, on October 14, 2003, Kemper
determined that Bennett was not disabled under the any-occupation standard, and thus, she was not
entitled to further LTD benefits after November 20, 2003. The denial letter explained that Bennett
could appeal the decision by filing a written request for a review of her claim.
        Meanwhile, Bennett’s Social Security disability application was percolating. On September
29, 2003, on behalf of Bennett, Allsup wrote a letter containing proposed findings of fact to the ALJ
assigned to Bennett’s case. On November 7, 2003, the Social Security Administration (“SSA”)
determined that, because of her MS, as of May 23, 2001, Bennett was disabled within the meaning
of the Social Security Act.
       Also in 2003 (the record is unclear as to the exact date), Lumbermens sold Kemper to
Broadspire, a company independent from Lumbermens or Kemper. J.A. at 672-73 (Notes to
Statutory Fin. Statements). Broadspire (which was owned by Platinum) assumed responsibility for
administering Bennett’s yet-unexhausted claim. See id.
       In 2004, Bennett supplied Broadspire with additional documentation in support of her appeal.
Broadspire commissioned two more file reviews, this time from Dr. Vaughn Cohan (“Cohan”) and
Dr. Donald Rose (“Rose”). The additional information submitted for review, in Cohan and Rose’s
opinion, did not support an impairment from November 1, 2003 through November 2004. Neither
Cohan’s nor Rose’s report made any mention of the SSA’s finding that Bennett was disabled except
to mention the decision in a list of information that they had received.
         In a letter dated December 9, 2004, Broadspire informed Bennett that it was upholding
Kemper’s original determination that Bennett did not satisfy the any-occupation standard for
disability. Having exhausted her internal appeals, Bennett filed a complaint against the defendants
in state court seeking LTD benefits under ERISA. The defendants removed the case to federal
district court and later filed a motion for entry of judgment. Bennett filed a motion to reverse the
defendants’ administrative decision. On September 29, 2006, the district court entered a judgment
in the defendants’ favor and against Bennett. Bennett filed a timely notice of appeal on October 11,
2006. We have jurisdiction pursuant to 28 U.S.C. § 1291.
                                         II. ANALYSIS
A. Standard of Review
        We review de novo the district court’s judgment on the administrative record. Evans v.
UnumProvident Corp., 434 F.3d 866, 875 (6th Cir. 2006). When, as is the case here, the benefit plan
gives the plan administrator discretionary authority to determine eligibility for benefits, we will
reverse the administrator’s decision only if it is arbitrary or capricious. Gismondi v. United Techs.
Corp., 408 F.3d 295, 298 (6th Cir. 2005). Under this standard, we uphold the administrator’s
decision “if it is the result of a deliberate, principled reasoning process and if it is supported by
substantial evidence.” Glenn v. MetLife, 461 F.3d 660, 666 (6th Cir. 2006) (internal quotation marks
omitted), cert. granted, 76 U.S.L.W. 3017 (U.S. Jan. 18, 2008) (No. 06-923) (cert. granted solely
No. 06-2326           Bennett v. Kemper Nat’l Servs., Inc. et al.                                Page 5


regarding conflict-of-interest issues). Although this standard is deferential, it “is no mere formality.”
Id. Rather, application of the standard requires us “to review ‘the quality and quantity of the
medical evidence and the opinions on both sides of the issues.’” Id. (quoting McDonald v. W.-S.
Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)).
        When determining whether a decision was arbitrary or capricious, we also factor in whether
there “existe[d] [] a conflict of interest,” whether “the plan administrator[] fail[ed] to give
consideration to the Social Security Administration’s determination that [the applicant] was totally
disabled,” id., and whether the plan administrator based its decision to deny benefits on a file review
as opposed to conducting a physical examination of the applicant. Calvert v. Firstar Fin., Inc., 409
F.3d 286, 295 (6th Cir. 2005). Such findings do not change our standard of review, but they do
factor into our analysis when determining whether the administrator’s decision was arbitrary or
capricious. Id. (conflict-of-interest context and file-review context); Glenn, 461 F.3d at 669 (failure
to consider the SSA’s determination of disability). We address each of these three factors below.
B. Conflict of Interest
         On appeal, Bennett contends that, although the district court acknowledged a conflict of
interest, it failed to give that conflict adequate weight. In contrast, the defendants argue that the
district court erred in finding any conflict. Because of our disposition of the case based upon
Bennett’s other assignments of error, we find it unnecessary to address the parties’ arguments
regarding whether a conflict of interest existed.
C. SSA’s Disability Determination
       Bennett argues that the district court gave inadequate consideration to the fact that
Broadspire, in its final benefits determination, failed to discuss the SSA’s determination that Bennett
was “disabled” under the Social Security Act. Recently, we addressed a situation where the
administrator assisted the plaintiff in obtaining Social Security disability benefits, and then, without
explanation, determined that for purposes of LTD benefits, the plaintiff was not disabled. This
sequence of events raised two overarching concerns:
        [T]he fact that MetLife and the Social Security Administration reached contrary
        conclusions regarding Glenn’s disability status has two ramifications for this appeal.
        The first stems from the fact that MetLife assisted Glenn in obtaining Social Security
        benefits and reaped a financial benefit of its own when that assistance was
        successful. The second issue relates to the fact that, in denying Glenn continuation
        of her long-term benefits, MetLife failed to address Social Security’s contrary
        determination of Glenn’s status.
Glenn, 461 F.3d at 667. We further explained in Glenn that “an ERISA plan administrator’s failure
to address the Social Security Administration’s finding that the claimant was ‘totally disabled’ is
yet another factor that can render the denial of further long-term disability benefits arbitrary and
capricious.” Id. at 669. We concluded that “[h]aving benefitted financially from the government’s
determination that Glenn was totally disabled, [the plan administrator] obviously should have given
appropriate weight to that determination.” Id.
       Similarly, in the case at bar, Kemper provided Bennett with assistance in obtaining Social
Security disability benefits, and under the Plan, was entitled to reduce the amount of benefits it paid
to Bennett by the amount Bennett received from Social Security. When Broadspire issued its
No. 06-2326               Bennett v. Kemper Nat’l Servs., Inc. et al.                                             Page 6


decision 2denying LTD benefits, it failed to explain why it reached a conclusion contrary to that of
the SSA.
        Conspicuously absent from the district court’s discussion on this point is any reference to
our Glenn decision decided four weeks earlier. Rather, citing an unpublished case, the district court
stated that a plan administrator is not required to refer to an SSA disability decision in its own
decision denying LTD benefits. The district court also stated that “silence by a plan administrator
with regard to a decision by the Social Security Administration does not necessarily mean that it was
not considered and evaluated. Furthermore, a plan administrator’s decision cannot be considered
arbitrary and capricious solely because the Social Security Administration rendered a different
decision.” J.A. at 64 (Order at 7) (citing Hurse v. Hartford Life & Accident Ins. Co., 77 F. App’x
310, 318 (6th Cir. 2003)). While technically correct, the district court fails to explain further that
if the plan administrator (1) encourages the applicant to apply for Social Security disability
payments; (2) financially benefits from the applicant’s receipt of Social Security; and then (3) fails
to explain why it is taking a position different from the SSA on the question of disability, the
reviewing court should weigh this in favor of a finding that the decision was arbitrary or capricious.
Glenn, 461 F.3d at 669.
        More importantly, the district court failed to demonstrate, through its application of law to
the facts, that it appreciated the gravity of Broadspire’s failure to discuss the SSA’s disability
determination. Instead the district court inquired into whether the defendants “act[ed] maliciously
in helping [Bennett] to obtain Social Security disability benefits.” J.A. at 69 (Order at 12). This
question is irrelevant and demonstrates that the district court did not properly synthesize
Broadspire’s failure to discuss the SSA disability determination into the arbitrary-or-capricious
analysis. We conclude that Broadspire’s silence as to the SSA’s disability determination weighs in3
favor of finding that Broadspire failed to engage in a “deliberate, principled reasoning process.”
Glenn, 461 F.3d at 666.
D. File Review
         Bennett also takes issue with the defendants’ decision to conduct only a file review.
Although “we find nothing inherently objectionable about a file review by a qualified physician in
the context of a benefits determination,” Calvert, 409 F.3d at 296, “a plan’s decision to conduct a
file-only review—‘especially where the right to [conduct a physical examination] is specifically
reserved in the plan—may, in some cases, raise questions about the thoroughness and accuracy of
the benefits determination.’” Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 621 (6th Cir. 2006)
(alteration in original) (quoting Calvert, 409 F.3d at 295). In Calvert, we were unable to credit the
conclusions reached in the file review when the reviewer based his conclusion that the plaintiff was
not disabled on adverse credibility determinations and when the reviewer’s conclusion stood in
direct conflict with objective medical data in the record. Calvert, 409 F.3d at 296-97.



         2
           We note that Broadspire’s final determination letter does mention the SSA’s decision. However, mere
mention of the decision is not the same as a discussion about why the administrator reached a different conclusion from
the SSA. In Glenn we concluded that the administrator failed to “discuss” a letter from the plaintiff’s treating physician.
Although the administrator argued that the denial letter did discuss the letter, we “f[ou]nd the word ‘discussed’ is
somewhat misleading; ‘mentioned’ would be a more accurate choice.” Glenn, 461 F.3d at 671 n.3. Here the final
determination letter simply lists the SSA decision as one item in a list of approximately ninety items “[i]ncluded in th[e]
review.” J.A. at 311-12 (Final Decision at 1-2).
         3
          At the root of all of the defendants’ SSA arguments is that Glenn was wrongly decided. See Defs.’ Br. at 34-
38. As Glenn is a published decision in our court, and therefore, binding precedent, we decline to entertain the
defendants’ arguments.
No. 06-2326               Bennett v. Kemper Nat’l Servs., Inc. et al.                                          Page 7


        We have similar concerns in the case at bar. Although the policy gave the defendants the
right to conduct a physical examination, the defendants opted to rely only on peer reviews of
Bennett’s files. J.A. at 135 (Plan). Our first concern is that, although both Cohan and Rose had
access to the SSA’s determination that Bennett was disabled and could not perform any job in the
national economy, neither doctor made any mention of this fact in his file review, much less
attempted to explain why he disagreed with the SSA’s determination. This raises serious questions
about the thoroughness and accuracy of these file reviews.
         Second, as in Calvert, Cohan implies in his file review that Bennett is not credible, despite
the fact that he had never physically examined her. J.A. at 346 (describing Bennett as
“exaggerati[ng]” and “embellish[ing]” in her test performance). Cohan based this determination on
notes from Bennett’s treating physicians, but none of those physicians ever cited any concerns that
Bennett was malingering. In fact Keenan’s examination notes state quite the opposite: that
Bennett’s “profile is more suggestive of depression than frank malingering, which was corroborated
by objective personality test results. Rather than a conscious attempt to feign cognitive symptoms
for monetary secondary gain, [] Bennett presented as having difficulties adjusting to and accepting
the limitations associated with MS.” J.A. at 265 (Keenan Rpt.) (emphasis supplied). Although all
of the file reviews key in on Keenan’s finding that the neuropsychological test results demonstrated
inconsistent effort, none of the file reviews explain that Bennett’s inconsistent efforts on the tests
were related to her difficulty in accepting and adjusting to MS.
       Third, the final determination that Bennett was not disabled was based, in part, on
inconsistent findings from Goldberg’s file review. In 2001, Goldberg originally found that Bennett
was not able to perform her own job. In his 2003 file review, he noted that Lisak indicated that
Bennett had a Class 4 impairment, cannot stand or walk, can sit for only two hours a day, and cannot
work, but Goldberg then concluded that Bennett does not have “a functional impairment that would
preclude [her] from either doing her own job or working at any job, particularly in a sedentary
capacity.” J.A. at 321 (Goldberg Review at 4). Goldberg reached         this conclusion without any
explanation as to why he did not agree with Lisak’s assessment.4 To the extent that Goldberg agreed
with Lisak’s assessment, we fail to understand how a person who can sit for only two hours in an
eight-hour work day and cannot stand or walk for any appreciable period of time could, nonetheless,
work.
        We conclude that the file reviews used in this case do not adequately explain why the
reviewers reach decisions contrary to both the SSA and the medical evidence presented through the
reports of Bennett’s treating physicians. Instead, the file reviews summarize Bennett’s medical
records and then conclusorily assert that Bennett can work. Further, we will not credit a file review
to the extent that it relies on adverse credibility findings when the files do not state that there is
reason to doubt the applicant’s credibility. Our concerns with the file reviews in this case weigh
significantly in favor of a finding that the final decision was arbitrary or capricious.
E. Broadspire’s Determination Was Both Arbitrary and Capricious.
        Our review of the record leads us to conclude that Broadspire’s decision was not made as
the result of “a deliberate, principled reasoning process.” Glenn, 461 F.3d at 666. As we have
discussed earlier in this opinion, the defendants assisted Bennett in obtaining disability benefits from
the SSA, reaped financial benefits from this decision, and then Broadspire failed to explain why it
reached a disability conclusion at odds with the SSA’s findings. Similarly, the file reviews which

         4
           The only indication we have that Goldberg discredits Lisak’s conclusion is when Goldberg points out that
although Lisak indicates that Bennett should never drive, Lisak also noted that Bennett had driven to her examination
in June 2003. However, Goldberg, himself, states that a no-driving restriction would be a reasonable limitation to place
on Bennett.
No. 06-2326            Bennett v. Kemper Nat’l Servs., Inc. et al.                                Page 8


Broadspire relied upon in denying Bennett’s claim offer no discussion about the SSA’s disability
determination. We are also troubled by Broadspire’s reliance on file reviews that imply that Bennett
is not credible, when in fact, no one who actually examined Bennett reached that conclusion.
Further, Broadspire’s reliance on a file report that acknowledges that Bennett cannot walk or stand
and can only sit for two hours and that conclusorily asserts that she can work in a sedentary capacity
demonstrates a lack of principled reasoning.
         We finally register our serious concern that the final denial letter fails to explain the reasons
for its decision. The three-page letter uses approximately one page to explain the standard for own-
occupation disability. The next page simply lists the approximately ninety documents which were
included in the review of Bennett’s claim. The actual explanation of the decision-making process
employed simply states that Broadspire did not believe that the submitted documents contained
“sufficient medical evidence . . . to substantiate a significant functional impairment that would
prevent[] [] Bennett from performing the essential functions of any occupation.” J.A. at 313 (Final
Decision). This reads like a conclusion, not a “deliberate, principled reasoning process . . .
supported by substantial evidence.” Glenn, 461 F.3d at 666. Accordingly, we hold that
Broadspire’s determination cannot withstand scrutiny under the “arbitrary or capricious” standard
of review.
                                         III. CONCLUSION
         Because we conclude that the decision to deny benefits was not the result of a deliberate and
principled reasoning process supported by substantial evidence, we VACATE the judgment of the
district court and REMAND with instructions to remand to Broadspire for a full and fair review
consistent with this opinion.
No. 06-2326           Bennett v. Kemper Nat’l Servs., Inc. et al.                             Page 9


                          ______________________________________
                            CONCURRING IN THE JUDGMENT
                          ______________________________________
        COOK, Circuit Judge, concurring in the judgment. While decisions from this circuit accept
that we must analyze this brand of ERISA cases under the arbitrary and capricious standard of
review, in practice we seem to stray improperly from that standard in favor of a more searching one.
A handful of factors—such as supposedly contrary Social Security Administration (SSA) disability
determinations, apparent conflicts of interest, and reliance on file reviews—colors our view of the
administrators’ decisions. Our increased skepticism is unwarranted, and I write separately not to
quibble over minor differences I might have with the majority’s analysis, but rather to explain why
these factors should be less relevant to our analyses of these cases.
                                        SSA Determinations
        Our court has succumbed to the unfortunate temptation of continuing to equate Social
Security and private insurance disability determinations, despite the Supreme Court’s clear and
explicit warning not to do exactly that. In 2003, this court joined the Ninth Circuit in importing the
SSA’s treating physician rule to ERISA cases, “requiring courts to defer to the opinions of a
claimant’s treating physicians unless there is substantial evidence contradicting them.” Darland v.
Fortis Benefits Ins. Co., 317 F.3d 516, 532 (6th Cir. 2003). The court approved Ninth Circuit
language finding the treating physician rule to be a “common sense requirement,” id. (quoting
Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1143 (9th Cir. 2001)),
but it failed to cite let alone explain the SSA regulation creating the treating physician rule, 20
C.F.R. § 404.1527(d)(2). Darland certainly did not explain, because it could not, why ERISA bound
private insurance companies to regulations promulgated to govern the administration of a public
benefit.
        The Supreme Court overturned the judicially created ERISA treating physician rule just four
months after this court issued Darland. See Black & Decker Disability Plan v. Nord, 538 U.S. 822
(2003). Writing for a unanimous court, Justice Ginsburg emphasized that “critical differences
between the Social Security disability program and ERISA benefit plans caution against importing
a treating physician rule from the former area into the latter.” Id. at 832–33. The Court further
noted that even “if a consultant engaged by a plan may have an ‘incentive’ to make a finding of ‘not
disabled,’ so a treating physician, in a close case, may favor a finding of ‘disabled.’” Id. at 832.
        Darland also adopted the Seventh Circuit’s “penumbra rationale,” holding that the principles
of judicial estoppel, if not the doctrine itself, apply to cases where the insurance company helps the
claimant successfully petition the SSA for disability benefits and yet later denies that claimant LTD
benefits. 317 F.3d at 529–30. One might think that the unanimous decision in Black & Decker
explicitly overturning one aspect of Darland would give us pause as to the continuing vitality of the
penumbra rationale. The Supreme Court explicitly warned courts not to equate the ERISA and
Social Security regulatory regimes. See Black & Decker, 538 U.S. at 830 (“The United States urges
that the Court of Appeals ‘erred in equating the two [statutory regimes].’ We agree.” (quoting the
Solicitor General’s amicus brief)). But our Glenn decision inexplicably held that comparing the
Social Security disability standard to the private standard under review “is all the more relevant in
the wake of” Black & Decker’s holding that the treating physician rule “is not applicable in ERISA
cases.” Glenn v. MetLife, 461 F.3d 660, 668 (6th Cir. 2006).
        Rather than attempting to salvage the penumbra rationale, I would read the Supreme Court’s
holding in Black & Decker as denying support to the theoretical underpinnings of the penumbra
rationale. Comparing disability standards to find estoppel requires courts to effectively equate the
No. 06-2326               Bennett v. Kemper Nat’l Servs., Inc. et al.                                           Page 10


two statutory regimes, and that is exactly what the Supreme Court counsels us against doing. But
even without Black & Decker’s guidance, our court ought to distinguish between public and private
“disability” determinations, for they are not the same.
                                                Conflicts of Interest
         The majority here does not analyze whether Kemper and Broadspire were acting under a
conflict of interest but many cases in our circuit do evaluate such conflicts.1 This line of argument
stems from Justice O’Connor’s statement in a seminal 1989 ERISA decision: “Of course, if a
benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of
interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of
discretion.’” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (quoting Restatement
(Second) of Trusts § 187 cmt. d (1959)). As other circuits have noted, “courts have struggled to give
effect to this delphic statement, and to determine both what constitutes a conflict of interest and how
a conflict should affect the scrutiny of an administrator’s decision to deny benefits.” Pinto v.
Reliance Standard Life Ins. Co., 214 F.3d 377, 383 (3d Cir. 2000), quoted by Denmark v. Liberty
Life Assur. Co., 481 F.3d 16, 29 (1st Cir. 2007).
        In this circuit, we typically find a structural conflict of interest exists any time the entity
paying benefits is also responsible for administering claims. See Miller v. Metro. Life Ins. Co., 925
F.2d 979, 984 (6th Cir. 1991). It is not obvious to me why this must always be so, and other circuits
have held that there is not an automatic conflict of interest in such situations. See, e.g., Davolt v.
Executive Comm. of O’Reilly Auto., 206 F.3d 806, 809 (8th Cir. 2000). ERISA was intended to
govern the administration of private benefit plans, see 29 U.S.C. § 1001, and it seems odd to assume
that companies would establish disability benefit plans only to deny benefits whenever possible.
See Denmark, 481 F.3d at 29–30. We can safely assume that the employee’s interest is always to
receive benefits when she asks for them. But we cannot assume the employer’s interest is to always
deny benefits, which if true would greatly reduce the value of the benefit as an overall part of the
employee’s compensation. And if that value were reduced, employees might seek additional
compensation in other forms. It may, and often will, be in the employer’s financial interest to grant
LTD benefits in some cases, especially the meritorious ones. I think we err, and misinterpret Justice
O’Connor’s statement, when we create a structural conflict of interest based on the simplistic
economic assumption that employers’ and employees’ interests will inevitably conflict.
                                                    File Reviews
       Our circuit also seems troubled when administrators decline to have the claimant
independently examined, see, e.g., Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 621 (6th Cir. 2006);
Kalish v. Liberty Mutual/Liberty Life Assur. Co. of Boston, 419 F.3d 501, 509 (6th Cir. 2005);
Calvert v. Firstar Fin., Inc., 409 F.3d 286, 295 (6th Cir. 2005), even though we find “nothing
inherently objectionable about a file review by a qualified physician in the context of a benefits
determination,” Calvert, 409 F.3d at 296. The Seventh Circuit recently found no
         authority that generally prohibits the commonplace practice of doctors arriving at
         professional opinions after reviewing medical files. In such file reviews, doctors are
         fully able to evaluate medical information, balance the objective data against the
         subjective opinions of the treating physicians, and render an expert opinion without
         direct consultation. It is reasonable, therefore, for an administrator to rely on its
         doctors’ assessments of the file and to save the plan the financial burden of
         conducting repetitive tests and examinations.

         1
           As the majority opinion recognizes, the Supreme Court recently granted certiorari to review this issue in Glenn
v. MetLife, 461 F.3d 660 (6th Cir. 2006), cert. granted, 76 U.S.L.W. 3017 (U.S. Jan. 18, 2008) (No. 06-923).
No. 06-2326           Bennett v. Kemper Nat’l Servs., Inc. et al.                            Page 11


Davis v. Unum Life Ins. Co., 444 F.3d 569, 577 (7th Cir. 2006). It is odd to suggest that an
administrator acts improperly by following standard practice in the health insurance industry, and
I would follow the Seventh Circuit in not penalizing administrators who base their decisions on their
experts’ file reviews.
        Writing on a clean slate, I would not hold that the administrator’s decision was arbitrary and
capricious. I cannot say that Bennett was deprived of the kind of contractually bargained-for benefit
that ERISA was enacted to protect. But being bound by Sixth Circuit precedent until the Supreme
Court or the en banc court rules otherwise, I concur in the judgment.
