                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2796
                                   ___________

Claud Sloan,                            *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Hartford Life and Accident              *
Insurance Company,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 14, 2006
                                Filed: January 29, 2007
                                 ___________

Before BYE, COLLOTON, and BENTON, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Hartford Life and Accident Insurance Company (Hartford) appeals the district
court's1 determination2 Claud Sloan qualifies for long-term disability benefits under
a plan governed by the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. §§ 1001-1461. We affirm.

      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
      2
       The district court's decision is reported at Sloan v. Hartford Life & Accident
Insurance Co., 433 F. Supp. 2d 1037 (D.N.D. 2006).
                                          I

       In 1983, Claud Sloan began working for the ANG Coal Gasification Company,
which subsequently provided him with long-term disability benefits under an ERISA
plan issued by Confederation Life Insurance Company (Confederation). On
December 31, 1985, a hydraulic door came down on the back of his head and neck and
fractured his C3 vertebrae. After rehabilitation, he tried returning to work. On
February 5, 1987, unable to continue working because of his accident, he applied for
disability benefits.

      The plan provided for twenty-four months of disability benefits if Sloan was
unable to perform the duties of his "own occupation." After twenty-four months, he
could receive benefits only if he was "unable to perform the essential duties of any
occupation[.]" He received twenty-four months of benefits under the "own
occupation" standard. Confederation initially denied benefits under the "any
occupation" standard, but reversed its decision following Sloan's administrative
appeal. The letter informing him of his right to long-term disability benefits stated:

      You have made a strong case for Total Disability which could translate
      well into a Social Security pursuit. Our definition of Total Disability
      after 24 months is very similar to the definition used by Social Security.
      Since we are admitting Mr. Sloan as Totally Disabled from all
      occupations, he should reapply for Social Security Disability benefits
      and pursue it to all levels if necessary.

Sloan applied for social security disability benefits in 1988, 1990, and 1995. Each
time he was denied.

       Sloan continued receiving long-term disability benefits for several years while
the plan was administered by Confederation. In 1997, the administration and liability
of the plan transferred from Confederation to Hartford. After the transfer, Hartford


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decided to review Sloan's claim, which included asking him to undergo an
independent functional capacity evaluation, reviewing his medical records,
interviewing him and his treating physicians, and performing surveillance on him. On
November 22, 2000, following its review, Hartford terminated his disability benefits.
He filed an administrative appeal. On May 14, 2001, Hartford upheld the decision to
terminate Sloan's benefits.

       After being terminated from long-term disability benefits, Sloan tried to work
part-time as a courtesy driver beginning in August 2001. He worked until March
2002, but quit due to continued pain and fatigue, telling his treating physician he "just
could not keep doing what he was doing" and "could not live like that." After a full
examination, his treating physician's notes state, "I don't see that [Sloan] needs to
focus on getting work right now as this would be very difficult for him. He is easily
overwhelmed; in fact, I don't see him as ever working as gainfully employed."

       On January 25, 2002, Sloan filed his fourth application for social security
disability benefits. He also commenced an action against Hartford in state court
seeking reinstatement of his long-term disability benefits. Hartford removed the
action to federal district court. Sloan and Hartford agreed to dismiss the federal
action, however, to allow him to pursue his Social Security appeal because Hartford
was entitled to offset social security benefits he might receive from any disability
benefits that may be owed under the plan. Following the stipulation, the district court
dismissed the action without prejudice.

       Sloan's fourth application for social security benefits was initially denied, but
after multiple appeals, was ultimately reopened. At an administrative hearing, he
introduced a letter from Dr. Roger Kennedy dated March 26, 2003. The letter was
generated in response to a questionnaire sent to the doctor by Sloan's attorney. Dr.
Kennedy's letter states in relevant part:



                                          -3-
# 1 I was Claud's treating physician from 1/23/86 through 10/2/89.

# 2 I did understand that Claud's work was sedentary but was scheduled
in 12-hr shifts with his being able to sit and stand at will. I couched
"other work restrictions" in some specifics to exclude anything other
than sedentary work. I also understood that he could only work for very
short periods of time without making his pain intolerable. He was able
to work approximately 50% of the expected work shift.

# 3 At no time since 3/5/87, has Claud been able to perform even
sedentary work on a regular daily basis for 40hrs/week because of his
disabling pain.

# 4 His complaints of pain, though unusually severe, seem credible and
quite reasonable when related to the unusually severe neck injury which
he sustained. Some injuries simply cause persistent, disabling pain
which may not be amenable to treatment. The mechanism of his injury
would seem quite consistent with soft-tissue injury to his neck skeletal
structures and swallowing mechanism – all of which show relatively
little structural changes on exams, X-rays and scans.

# 5 Prescription narcotic medications certainly can dull people's thought
processes, memory and judgment which in turn can endanger themselves
and others. I really can't speak specifically about this in Claud's case.

# 6 Yes. Even frequent position changes at will did not seem to
effectively alleviate his pain.

# 7 Lifting any significant amount of weight, if it increases his pain and
interferes with his work ability is considered contraindicated, simply as
another means of making his pain manageable enough that he could
continue to work.
.....

# 9 The need for rest and frequent change of position seems credible and
reasonable.



                                   -4-
       Sloan also testified before the Administrative Law Judge (ALJ) at the hearing,
describing how his injuries and resulting pain affected his ability to work. Following
the hearing, the ALJ issued a decision finding him disabled as of February 5, 1987,
giving great weight to Dr. Kennedy's letter and finding Sloan's testimonial allegations
of pain "credible and persuasive." The favorable award entitled him to social security
disability benefits retroactive to January 2001, or 12 months prior to his last
application for social security benefits. See 20 C.F.R. § 404.621 (indicating a
successful claimant "may receive benefits for up to 12 months immediately before the
month in which your application is filed"); 42 U.S.C. § 423(b) (same).

       On January 28, 2005, armed in part with the favorable social security decision,
Sloan refiled suit against Hartford in federal district court seeking reinstatement of his
long-term disability benefits retroactive to November 1, 2000, the effective date of
Hartford's termination. Both parties filed motions for summary judgment, which the
district court denied. The district court set the case for a bench trial, but the parties
agreed to forego a bench trial in favor of proceedings on the briefs and a stipulated
fact record.

      Sloan filed a motion for introduction of additional evidence outside the
administrative record, i.e., the favorable social security decision and the medical
records contained in the social security administrative record. The district court
granted his motion, finding good cause existed under the circumstances present in this
case. Sloan v. Hartford Life & Accident Ins. Co., 433 F. Supp. 2d 1037, 1039 (D.N.D.
2006).

      Because the plan did not grant Hartford discretion to interpret plan language or
determine eligibility for benefits, the district court applied de novo review to
determine whether Sloan qualified for long-term disability benefits. Id. at 1047-48.
Under that standard, the district court determined he was entitled to disability benefits.
The district court based its decision, in part, on a conclusion the plan was ambiguous


                                           -5-
with respect to whether long-term disability benefits were owed only to a claimant
who could not engage in any work – whether part-time or full-time – or whether a
claimant who could work part-time was still entitled to benefits. The district court
construed the ambiguity against Hartford and concluded the plan provided benefits to
a claimant who could work part-time. In the alternative, the district court found as a
matter of fact that Sloan could not engage in even part-time work, basing its finding
upon the medical evidence in the record, the favorable social security decision, and
Sloan's failed attempt to work part time in late 2001 and early 2002. Id. at 1049-50.

      Because Hartford was allowed to offset the social security disability benefits
Sloan was entitled to receive as of January 2001, the district court calculated the
amount of past due disability benefits Hartford owed after offsetting social security
benefits, as follows:

      •        From November-December 2000, the full amount of LTD benefits
               amounts to $1,701 per month for a total of $3,402;

      •        Beginning January 2001, through May 2006, Hartford Life owed
               the sum of $443 per month (original LTD benefits of $1,701 less
               monthly Social Security disability benefits of $1,258), which
               equates to 65 months at $443 per month for a total of $28,795;

      •        The total award of past due disability benefits owed from October
               1, 2000, through May 31, 2006, amounts to the sum of $32,197.

Id. at 1051.

       Hartford filed a timely appeal. On appeal, Hartford contends the district court
abused its discretion in admitting evidence outside the administrative record, erred in
determining the Plan was ambiguous with respect to the issue of part-time work, and
clearly erred in determining Sloan was totally disabled from performing even part-
time work. Finally, Hartford contends that, even if the district court correctly


                                          -6-
determined he was totally disabled, it erred by calculating the past due benefits instead
of remanding the claim to allow Hartford to calculate the amount of the social security
offset.

                                            II

       We first examine the district court's decision to admit Sloan's favorable social
security decision. In a de novo ERISA case, we review a decision to consider
evidence outside the administrative record for an abuse of discretion, noting "the
district court should not exercise this discretion absent good cause to do so."
Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993). In determining
whether good cause exists, we have focused in large part on whether the claimant had
an opportunity to present the additional evidence during the administrative
proceedings. An opportunity and failure to present the additional evidence shows a
lack of good cause. Davidson v. Prudential Ins. Co., 953 F.2d 1093, 1095 (8th Cir.
1992).

       Sloan did not have an opportunity to present the favorable social security
decision during the administrative proceedings because the ALJ did not issue its
decision until December 2003, well after the final administrative decision was made
in May 2001. Hartford complains the district court admitted medical evidence
included in the social security record that was in existence before the close of the
administrative proceedings, and thus Sloan had an opportunity to present this evidence
in the administrative proceedings. Hartford's argument fails, however, because the
medical evidence referenced actually was submitted in the administrative proceedings;
thus, the district court's admission of it as part of the social security record was merely
duplicative. As to the duplicative medical evidence contained in both the
administrative record and the social security record, the district court did not abuse its
discretion.



                                           -7-
       Turning to the nonduplicative new evidence considered by the district court, the
district court gave four reasons for admitting the additional evidence : 1) Hartford
stipulated to the dismissal of the first federal court action for the specific purpose of
allowing Sloan to pursue his social security claim; 2) the social security definition of
disability is very similar to the definition of disability in the plan; 3) the district court
considered the ALJ's credibility determinations regarding Sloan's subjective
complaints of pain to be highly probative of the ultimate question of disability; and
4) equity weighed in his favor because he had received disability benefits for nearly
thirteen years before Hartford's termination. Sloan, 433 F. Supp. 2d at 1038.

       The second and third reasons given by the district court are sufficient to support
its decision. As acknowledged by Confederation in the letter informing Sloan of his
right to long-term disability benefits, the plan's "definition of Total Disability after 24
months is very similar to the definition used by Social Security." A social security
disability determination is generally admissible evidence to support an ERISA claim
for long-term disability benefits. See Reidl v. Gen. Am. Life Ins. Co., 248 F.3d 753,
759 n.4 (8th Cir. 2001). In the absence of Sloan's opportunity to present this relevant
evidence during the administrative proceedings, we are hard-pressed to conclude the
district court abused its discretion in considering it, especially when Hartford has not
referred us to anything in particular about this case which would make consideration
of relevant evidence an abuse of discretion. In addition, because the parties agreed to
forego a bench trial in favor of proceeding on the briefs and a stipulated fact record,
we understand why the district court would consider the ALJ's view of Sloan's
credibility to be highly probative, because the district court did not have its own
opportunity to evaluate his credibility in a full bench trial. Finally, we see nothing
improper about the first and fourth reasons given by the district court for admitting the
evidence. We therefore conclude the district court did not abuse its discretion by
considering the additional evidence.




                                            -8-
        We turn next to the district court's finding that Sloan qualifies for long-term
disability benefits. Hartford challenges both the district court's determination the plan
was ambiguous as to whether a claimant could receive long-term disability benefits
when able to work part-time, and the district court's ultimate determination he
qualified for disability benefits in any event because he could not even work part-time.
If the district court's ultimate determination is sound, it will be unnecessary to address
any alleged ambiguity about part-time work, and thus we first address Hartford's
second challenge.

        The district court's finding that Sloan qualifies for long-term disability benefits
is a finding of fact subject to the clearly erroneous standard of review. Donatelli, 992
F.2d at 765. "This standard plainly does not entitle a reviewing court to reverse the
finding of the trier of fact simply because it is convinced that it would have decided
the case differently." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573
(1985). "The reviewing court oversteps the bounds of its duty under Rule 52(a) if it
undertakes to duplicate the role of the lower court." Id.

      If the district court's account of the evidence is plausible in light of the
      record viewed in its entirety, the court of appeals may not reverse it even
      though convinced that had it been sitting as the trier of fact, it would
      have weighed the evidence differently. Where there are two permissible
      views of the evidence, the factfinder's choice between them cannot be
      clearly erroneous. . . . Duplication of the trial judge's efforts in the court
      of appeals would very likely contribute only negligibly to the accuracy
      of fact determination at a huge cost in diversion of judicial resources. In
      addition, the parties to a case on appeal have already been forced to
      concentrate their energies and resources on persuading the trial judge
      that their account of the facts is the correct one; requiring them to
      persuade three more judges at the appellate level is requiring too much.
      . . . [T]he trial on the merits should be the main event rather than a tryout
      on the road.

Id. at 573-75 (internal quotations and citations omitted).


                                           -9-
       The outcome in this case is driven by the applicable standard of review. Under
the clear error standard, there is enough evidence to support the district court's
findings. Sloan was considered eligible for long-term disability benefits for an
uninterrupted period of almost thirteen years. The recent finding of disability under
the rigorous social security standard, with a disability onset date of February 1987,
confirms the validity of his eligibility for benefits during that period of time. The ALJ
found his subjective complaints of disabling pain credible, as did his treating
physicians. His reported daily activities were consistent with an inability to maintain
a job on a regular basis, even a part-time job. He tried to go back to work part-time
in late 2001 and early 2002, and the medical evidence in the record indicates he was
unable to sustain the part-time job. All of this evidence supports the district court's
factual determinations. Although Hartford can point to evidence in the record which
tends to show he was not disabled, that is not enough for us to conclude the district
court clearly erred. See Anderson, 470 U.S. at 574 ("Where there are two permissible
views of the evidence, the factfinder's choice between them cannot be clearly
erroneous.").

        Finally, we address Hartford's contention the district court erred by calculating
the amount of past due benefits instead of remanding the case to give Hartford the first
opportunity to calculate the amount administratively. In its calculations, the district
court offset social security disability benefits beginning in January 2001, when Sloan
actually began receiving those benefits. Hartford contends the plan may permit it to
offset social security benefits even before he began receiving them, and thus Hartford
should have been given the first opportunity to interpret the plan and calculate the
offset.

       The plan language upon which Hartford relies states Hartford's monthly
obligation to pay long-term disability benefits may be offset by the amount of social
security benefits "paid, payable, or for which there is a right." Hartford further relies
on the district court's statement: "Sloan was entitled to disability benefits beginning


                                          -10-
on February 5, 1987." Sloan, 433 F. Supp. 2d at 1038. Putting this statement together
with the plan language, Hartford contends it may be entitled to offset social security
disability benefits dating as far back as February 5, 1987 (even though Sloan never
received social security disability benefits between February 1987 and January 2001)
because the plan allows Hartford to offset social security benefits "for which there is
a right" even if the benefits were not received.

       We reject Hartford's argument out of hand because it is based on a flawed
premise. The district court misspoke when it said Sloan was entitled to social security
benefits beginning on February 5, 1987. What it meant to say was he had a disability
onset date of February 5, 1987. The district court made this clear later in its decision.
Compare Sloan, 433 F. Supp. 2d at 1038 (referring to the "favorable Social Security
decision . . . finding that Sloan was entitled to disability benefits beginning on
February 5, 1987") with id. at 1047 (referring to the ALJ's finding that Sloan "has
been under a disability as defined by the Social Security Act and Regulations since
February 5, 1987").

       A disability onset date is not always the same as the date a claimant has the
right to receive benefits. Sloan made three unsuccessful applications for social
security disability benefits in 1988, 1990, and 1995. His unsuccessful applications
clearly precluded him from having a "right" to receive benefits during that period of
time. Under the pertinent social security statute and regulation, he only had a "right"
to social security disability benefits dating back twelve months from his fourth and
only successful application for benefits, which was filed January 25, 2002. See 20
C.F.R. § 404.621 (indicating a successful claimant "may receive benefits for up to 12
months immediately before the month in which your application is filed"); 42 U.S.C.
§ 423(b) (same).

      Because there is simply no legitimate basis for Hartford's contention regarding
a potential offset of social security benefits at a point in time earlier than January


                                          -11-
2001, the district court committed no error when it failed to remand the case to allow
Hartford the first opportunity to calculate the offset administratively.

                                         III

      We affirm the district court's well-reasoned decision in all respects.
                      ______________________________




                                        -12-
