                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 19, 2008
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                  TENTH CIRCUIT                       Clerk of Court



 MATHEW B. CHALKER,

          Plaintiff-Appellant,

 v.

 RAYTHEON COMPANY;                                      No. 07-4069
 RAYTHEON COMPANY LONG-                         (D.C. No. 2:05-CV-00869-TS)
 TERM DISABILITY PLAN;                                    (D. Utah)
 RAYTHEON EMPLOYEES
 DISABILITY TRUST;
 METROPOLITAN LIFE INSURANCE
 COMPANY,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and MURPHY, Circuit Judges.


      Plaintiff-Appellant Mathew Chalker appeals the district court’s entry of

judgment based on the administrative record in favor of Defendants-Appellees

Raytheon and Metropolitan Life Insurance Company (“MetLife”). This case

arises out of Chalker’s allegation that Defendants wrongfully terminated his long-


      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
term disability benefits under the Employee Retirement Income Security Act

(“ERISA”), 29 U.S.C. § 1132. The district court disposed of Chalker’s claims on

two grounds: (1) Chalker’s suit was time-barred by a one-year contractual

limitations period contained in the company’s Long-Term Disability Plan (“the

Plan”), and (2) even if Chalker’s suit were not time-barred, MetLife’s decision to

terminate Chalker’s benefits was not arbitrary and capricious. Chalker now

appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      From 1977 until 2000, Chalker was employed in Raytheon’s Human

Resources Department, eventually serving as the Department’s Senior Manager.

While with Raytheon, Chalker participated in the Plan. The Plan is sponsored and

administered by Raytheon, while MetLife is the long-term disability (“LTD”)

claims administrator. As the LTD claims administrator, MetLife determines “all

claims for [b]enefits and questions which may arise under the Plan with respect to

the payment of [b]enefits....” The Plan specifically provides that these decisions

“shall be conclusive and binding on all persons, unless a court of competent

jurisdiction determines that [MetLife’s] decision was arbitrary or capricious.”

MetLife has no financial obligations under the Plan, which is funded exclusively

by Raytheon employees.

      As provided for in the Plan, an individual is considered disabled “for the

first 15 months [he] is receiving LTD benefits if [he is] unable to perform the

                                        -2-
essential elements of [his] job with reasonable accommodation.” Once this

15-month period has expired, an individual continues to be eligible for LTD

benefits only if he is “unable to work at any job for which [he is] reasonably

qualified by training, education or experience....” While receiving benefits, an

individual may be asked to “provide proof of [a] continued disability.”

      Individuals who believe they have been wrongfully denied benefits under

the Plan may commence civil actions after exhausting a number of administrative

remedies. However,

      no action at law or in equity shall be brought to recover Benefits
      under the Plan prior to expiration of sixty (60) days after a claim has
      been filed in accordance with the requirements of the Plan, nor shall
      an action be brought at all unless within one (1) year after expiration
      of the time permitted under the Plan for furnishing proof of disability
      to the Claims Administrator.

This information is not contained in the Summary Plan Description (“SPD”).

      In November of 2000, Chalker became unable to continue his employment

with Raytheon due to a variety of medical difficulties. Chalker thereafter

requested LTD benefits; MetLife initially approved those benefits in February of

2001. At this time, Chalker was diagnosed with major depressive disorder,

generalized anxiety disorder, and fibromyalgia.

      Over the next year, Chalker’s condition showed little improvement. In May

of 2002, Katherine Thompson, Chalker’s clinical nurse specialist, asserted that

Chalker was “not anywhere [near] ready to [return to work] due to his physical


                                        -3-
condition….” Similarly, in December of that same year, Dr. McBride, Chalker’s

treating physician, asserted that Chalker’s “physical abilities are poor but

improving languidly. At this time, [Chalker] cannot perform any job.” Eight

months later, in August of 2003, Chalker’s condition still had not improved. To

that effect, Dr. Jepson, Chalker’s subsequent treating physician, noted that

Chalker could not “perform any activity for more than 5-10 minutes” and was to

“avoid completely” standing, sitting, or reaching, among other activities. Based

on such concerns, MetLife continued Chalker’s LTD benefits.

       Some time later, in February of 2004, Chalker underwent a Facility

Capacity Evaluation (“FCE”) at MetLife’s direction. As part of the FCE, Chalker

was asked to perform 21 different physical tasks, including pushing, pulling, and

sitting. According to John Michael Orr, the FCE administrator, Chalker

“participated fully in 2 out of 21 tasks ... and demonstrated self-limiting

participation by stopping tasks early due only to reasons of pain on 19 out of 21

tasks....”

       Based on Chalker’s performance during the FCE, Orr opined that Chalker

was “capable of performing physical work at the Light level, as defined by the

U.S. Department of Labor....” Orr further noted that “[t]his overall level of work

is merely a guideline, if accommodations are made based on the specific abilities

and tolerances demonstrated, other levels of work may be feasible.”

Nevertheless, Orr concluded that “[g]iven [Chalker’s] tendency toward self-

                                         -4-
limiting physical demands secondary to increasing pain levels and his reduced

position tolerances for sustained sitting and standing, it [was] difficult to predict

whether Mr. Chalker could maintain the Sedentary level of work for the 8-hour

day.”

        Orr’s basic conclusions were supported by Dr. Tracey Schmidt, an

independent physician consultant (“IPC”) to whom MetLife provided the results

of Chalker’s FCE. According to a report prepared by Dr. Schmidt, who is Board

Certified in Internal Medicine and Rheumatology, Chalker

        was given a light work capacity [on the FCE] due to significant self-
        limiting behavior. Therefore, this represents a minimum, not a
        maximum, work capacity.... By self-limiting on the FCE, no
        maximum work capacity could be ascertained, but there was no
        objective evidence [Chalker] would be unable to work in a light
        capacity on a full-time basis.

        On the heels of Dr. Schmidt’s report, in May of 2004, MetLife obtained an

Employability Assessment and Labor Market Analysis regarding Chalker. This

analysis concluded that “Chalker possesse[d] transferable skills and aptitudes and

temperaments for other occupations” and that “3 [such] potential occupations for

which Mr. Chalker [was] qualified” existed in his geographic area. Each of these

potential occupations required a light level of physical exertion and involved

managerial responsibilities.

        In light of the Employability Assessment and Labor Market Analysis, in

June of 2004, MetLife informed Chalker that “[b]ased upon a thorough and


                                          -5-
extensive review and evaluation of all the medical information submitted by

[Chalker], [his] physicians, and all the documentation contained in [Chalker’s]

claim file,” Chalker no longer qualified for LTD benefits under the Plan. In

reaching this decision, MetLife cited the FCE, Dr. Schmidt’s report, and the

Employability Assessment and Labor Market Analysis. MetLife’s letter

concluded that

      in view of the above, we have determined that the medical evidence
      submitted does not support the existence of a totally disabling
      condition preventing you from performing any and all occupations
      for which you are reasonably qualified.... Therefore, under the terms
      of the Plan, we have no alternative but to terminate your benefits
      effective May 28, 2004.

      In July of 2004, Chalker appealed MetLife’s decision. According to

Chalker, “[a] significant portion of the medical evidence was left out of [his] file

and was not considered during the first review, which led to an incorrect

conclusion about [his] disability.” Chief among this evidence according to

Chalker was a Statement of Functional Capacity (“SFC”) completed by Dr.

Jepson, asserting that Chalker was “‘totally disabled for any occupation for an

indefinite period of time.’” Chalker also offered letters from Drs. Jepson and

McBride indicating that he was totally disabled and unable to perform any job.

Dr. Jepson’s letter specifically took issue with the FCE:

      With regard to [Chalker’s] functional capacity evaluation on
      February 5, 2004, I think MetLife should be aware that he suffered
      for several days with a post-activity spasm pain known as “after
      discharge” pain. He was in bed for several days afterwards. During

                                        -6-
      the evaluation itself he had to rest in a combination of lying down
      and sitting for about 120 minutes. He was only able to perform
      activities for about 60 minutes. Therefore, it seems impossible that
      [Chalker] would be able to work eight hours each day, five days a
      week.

Thus, Dr. Jepson opined that Chalker was “completely and permanently disabled

from any occupation....”

      Following its receipt of Chalker’s appeal, in August of 2004, MetLife

obtained an additional report from another IPC, Dr. Elinor Mody (who like Dr.

Schmidt, is Board Certified in Internal Medicine and Rheumatology). According

to Dr. Mody’s report, she had a telephone conversation with Dr. McBride, in

which Dr. McBride allegedly asserted that “Chalker had no inflamed joints and all

of his disabling diagnosis were subjective. Mr. Chalker has improved quite a bit

on medication. He can now walk down the stairs without difficulty; initially he

would not even leave the bed.” In light these remarks and the additional

information contained in the various reports concerning Chalker, Dr. Mody

concluded that “[t]here is no clear medical evidence in terms of [Chalker’s]

physical health to support recommending against all work. Mr. Chalker has,

again, no abnormal joint findings and no significant cardiovascular disease that

has been documented. Therefore, there are no obvious adverse consequences that

come to mind from performing a sedentary job.” Thus, although Dr. Mody agreed

with the FCE and Dr. Schmidt that Chalker was capable of some level of work,

she believed this work could be at the sedentary level.

                                        -7-
      In light of Dr. Mody’s conclusion that Chalker was capable of sedentary

work as opposed to light level work, in September of 2004, MetLife obtained a

new Employability Assessment and Labor Market Analysis for Chalker. This

analysis concluded that there were four available positions involving sedentary

work for which Chalker was qualified. Based on Dr. Mody’s report, as well as

the updated Employability Assessment and Labor Market Analysis, MetLife

denied Chalker’s appeal on October 5, 2004.

      In denying Chalker’s appeal, MetLife was dismissive of Dr. Jepson’s SFC

because Dr. Jepson “did not provide office notes or physical exam findings. In

addition, Dr. Jepson did not comment on [Dr. Schmidt’s report]....” Additionally,

in order to support its decision, MetLife cited Dr. Mody’s report, noting that Dr.

Mody had spoken with Dr. McBride, and concluded that “there [was] no clear

medical evidence in terms of [Chalker’s] physical health to support

recommending against all work.” Lastly, MetLife cited a September 2004 report

from a psychiatrist, Dr. Reginald Givens, that concluded “there is not clear

medical evidence to support a psychiatric condition that would prevent [Chalker]

from all work.”

      On October 21, 2005, over a year after MetLife denied Chalker’s appeal,

Chalker sued Defendants, asserting that he was improperly denied LTD benefits

under the Plan. Defendants filed a motion for judgment on the administrative

record. The district court granted this motion, concluding that Chalker’s claim

                                        -8-
was time-barred because he did not file his civil action within the one year

contractual limitations provision contained in the Plan. Alternatively, the district

court asserted that even if Chalker’s claim were not time-barred, Chalker had not

shown that MetLife’s decision to deny him LTD benefits was arbitary and

capricious. Chalker now appeals.

                                 II. DISCUSSION

      Because we believe this case can be readily decided on the merits, we need

not consider whether Chalker’s civil action is barred by the Plan’s contractual

limitations provision, and we instead focus our analysis exclusively on whether

MetLife’s decision to terminate Chalker’s benefits was arbitrary and capricious.

                              A. Standard of Review

      The Plan grants MetLife discretionary authority to determine eligibility for

LTD benefits. 1 Therefore, we agree with the district court that MetLife’s decision

should be reviewed under the arbitrary and capricious standard. See Gaither v.

Aetna Life Ins. Co., 388 F.3d 759, 767 (10th Cir 2004). And “[b]ecause

[Chalker] has not raised the issue of a potential conflict of interest warranting an

enhanced standard of review, we assume that the pure arbitrary and capricious

standard applies.” Buckardt v. Albertson’s, Inc., 221 Fed. App’x 730, 734 (10th


      1
        In this regard, the Plan provides that “[t]he decisions of the Claims
Administrator shall be conclusive and binding on all persons, unless a court of
competent jurisdiction determines that such decision was arbitrary and
capricious.”

                                         -9-
Cir. 2007) (unpublished) (citing Fought v. UNUM Life Ins. Co. of Am., 379 F.3d

997, 1003 (10th Cir.2004)).

       “The district court’s determination of whether a plan administrator’s

decision is arbitrary and capricious is a legal conclusion subject to de novo

review.” Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1119 (10th Cir. 2006).

“Indicia of arbitrary and capricious decisions include lack of substantial evidence,

mistake of law, bad faith, and conflict of interest by the fiduciary.” Caldwell v.

Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002). “Substantial

evidence is such evidence that a reasonable mind might accept as adequate to

support the conclusion reached by the decisionmaker.” Id. (alteration, quotations

omitted). “Substantial evidences requires more than a scintilla but less than a

preponderance.” Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th

Cir. 1992) (quotation omitted).

      “When reviewing [MetLife’s decision] under the arbitrary and capricious

standard, [MetLife’s] decision need not be the only logical one nor even the best

one. It need only be sufficiently supported by facts within [its] knowledge to

counter a claim that it was arbitrary or capricious.” Kimber v. Thiokol Corp., 196

F.3d 1092, 1098 (10th Cir. 1999) (alterations, quotations omitted). With this in

mind, “[t]he decision will be upheld unless it is not grounded on any reasonable

basis.” Id. (quotation omitted).




                                        - 10 -
                            B. Chalker’s Arguments

      Chalker briefly advances several arguments in an effort to prove that

MetLife’s decision was arbitary and capricious. We consider each in turn.

   1. MetLife did not consider information provided by Chalker’s treating
                                  physicians

      Chalker’s argument that MetLife failed to consider information provided by

his treating physicians is unavailing. There is no evidence in the record

suggesting that MetLife ignored the reports of Drs. McBride and Jepson; indeed,

the evidence is to the contrary. MetLife consistently provided the reports of Drs.

McBride and Jepson to the IPCs who independently evaluated Chalker’s

condition. Although Chalker may disagree with the analysis of the IPCs, there is

simply no evidence that MetLife failed to consider the materials provided by his

treating physicians.

      As the Supreme Court indicated in Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834 (2003):

      Plan administrators, of course, may not arbitrarily refuse to credit a
      claimant’s reliable evidence, including the opinions of a treating
      physician. But, we hold, courts have no warrant to require
      administrators automatically to accord special weight to the opinions
      of a claimant’s physician; nor may courts impose on plan
      administrators a discrete burden of explanation when they credit
      reliable evidence that conflicts with a treating physician’s evaluation.

Thus, it was not arbitrary and capricious for MetLife to credit the reports of the

two IPCs rather than the reports of Drs. McBride and Jepson; MetLife did not


                                        - 11 -
owe the opinions of Drs. McBride and Jepson any special deference. Meraou v.

Williams Co. Long Term Disability Plan, 221 Fed. App’x 696, 702 (10th Cir.

2007) (unpublished opinion) (asserting that “[i]n ERISA cases no special

deference is due the opinion of the claimant’s treating physician.”).

             2. MetLife relied upon a flawed and inconsistent FCE

      Chalker also asserts that numerous flaws with the FCE rob it of any utility

in assessing whether he ought to receive LTD benefits. In Buckardt, 221 Fed.

App’x at 736, this court considered the utility of FCEs that “contain[ed] some

contradictory findings....” At issue there were FCEs that asserted the claimant

      had to change postures frequently during the evaluation, experienced
      high pain levels at certain times during the testing, reported difficulty
      sitting, standing, walking, and lifting, and reported pain that
      prevented her from hobbies, sports, sexual relations, chores, and
      work. However, despite noting these difficulties, both [FCEs]
      ultimately concluded that [the claimant] was capable of modified
      sedentary work.

Id. Despite these contradictory findings, this court nevertheless asserted that the

administrator could rely on the FCEs, as under the arbitrary and capricious

standard of review, “‘[t]he Administrator[’s] decision need not be the only logical

one nor even the best one. It need only be sufficiently supported by facts within

[his] knowledge to counter a claim that it was arbitrary and capricious.’” Id.

(quoting Kimber, 196 F.3d at 1098.)

      The same notion rings true in this case. Although there may well be some

flaws with the FCE, it is not so flawed that it could not have provided MetLife

                                        - 12 -
with any reasonable basis to terminate Chalker’s LTD benefits. That is, the

evidence is of the sort that “a reasonable mind could accept as sufficient.”

Adamson v. UNUM Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006).

    3. MetLife relied upon the opinions of IPCs whose qualifications with
                respect to fibromyalgia were not established

      Next, Chalker contends that the qualifications of Drs. Schmidt and Mody

with respect to fibromyalgia were not established. Drs. Schmidt and Mody,

however, are both Board Certified in Rheumatology; “rheumatology is the

relevant specialty for fibromyalgia.” Howell v. Astrue, 248 Fed. App’x 797, 798

(9th Cir. Sept. 19, 2007) (unpublished). Nevertheless, Chalker contends that

“[a]lthough fibromyalgia may generally be included within the field of

rheumatology, that does not mean all rheumatologists are qualified to handle

fibromyalgia cases.”

      While it is no doubt true that some rheumatologists have more expertise in

fibromyalgia than others, it cannot be said that MetLife’s reliance on the opinions

of two independent, board certified rheumatologists was arbitrary and capricious.

Although MetLife may have been better served by finding rheumatologists with

fibromyalgia specialties, it cannot be concluded that doing so was required under

the arbitrary and capricious standard of review. Again, the opinions of Drs. Mody

and Schmidt, provided evidence of the sort that “a reasonable mind could accept

as sufficient.” Adamson, 455 F.3d at 1212.


                                        - 13 -
        4. Defendants relied upon the opinions of IPCs who disagreed

      Next, Chalker points out that Drs. Mody and Schmidt disagreed regarding

the level of work he was capable of performing. In this respect, Dr. Mody

concluded that Chalker was capable of sedentary work, while Dr. Schmidt

concluded that Chalker was capable of light level work. This disagreement,

however, is of no aid to Chalker’s claim. While Drs. Mody and Schmidt may

have disagreed about the level of work Chalker was capable of, they did not

disagree that Chalker was capable of performing some level of work. And

whether that work be at a sedentary or light level is immaterial in deciding

whether MetLife arbitrarily and capriciously denied Chalker LTD benefits.

     5. Defendants failed to consider Chalker’s medication/pain/or other
       circumstantial evidence in determining whether he was disabled

      Finally, Chalker asserts, without elaborating, that MetLife ignored

Chalker’s medication schedule, constant pain, and “other circumstantial evidence”

in concluding that he was no longer qualified for LTD benefits. Because Chalker

does not extrapolate on these arguments, it is difficult to determine his precise

claims. In any case, the arguments are of no aid to Chalker in surmounting the

arbitrary and capricious standard of review.

      Again, the question for this court is not whether MetLife made the

“correct” decision in terminating Chalker’s LTD benefits. Instead, the question is

whether MetLife had a reasonable basis for the decision that it made. We are


                                        - 14 -
confident that it did. In determining that Chalker was not qualified for LTD

benefits, MetLife relied on the evaluations of two independent, board certified

rheumatologists as well as the independent FCE, all of which suggested that

Chalker could perform some level of work. While Chalker may be able to dispute

this evidence, he cannot contradict it to such an extent that it can be said

MetLife’s decision was arbitrary and capricious.

                                III. CONCLUSION

      Based on the foregoing, the judgment of the district court is AFFIRMED.




                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                         - 15 -
07-4069, Chalker v. Raytheon Company, et al.

BRISCOE, J. dissenting:


      I respectfully dissent. In my view, the administrative record firmly

establishes that MetLife’s decision to terminate Chalker’s disability benefits was

arbitrary and capricious because it was based, in substantial part, on a critically

flawed Functional Capacity Evaluation (FCE) summary report. Further, it is

apparent from the record on appeal that the district court erred in concluding that

Chalker’s suit was time-barred. I would reverse and remand for further

proceedings.

                                          I.

               Defendants’ termination of Chalker’s disability benefits

      Although I agree with the majority’s resolution of most of the challenges

leveled by Chalker against MetLife’s decision, I disagree with the majority’s

conclusion, in Section II.B.2, that the FCE summary report was “not so flawed

that it could not have provided MetLife with any reasonable basis to terminate

Chalker’s [long-term disability] benefits.” O&J at 12-13. On this key point, I

conclude, after carefully examining the administrative record, that reasonable

minds simply could not accept as sufficient the conclusions reached in the FCE

summary report. Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212

(10th Cir. 2006).
      To begin with, the detailed findings reported in the FCE summary report

are inconsistent with, and ultimately fail to support, the conclusion reached in the

FCE summary report. In particular, the FCE summary report acknowledged that

Chalker, due to what it described as “intolerable pain” (or, alternatively, as “8” or

“8-9” on a “0-10 subjective pain scale”), was unable to complete 19 of the 21

tasks that were part of the FCE, and also “performed poorly on the sustained

sitting task due to high pain scores and a high frequency of postural adjustments .

. . .” Aplee. Supp. App. at 476. In addition, the FCE summary report

acknowledged that Chalker’s “tolerances for Light level work for the 8 hour day

[we]re difficult to predict given the extent of [his] self-limiting behavior . . . .”

Id. at 475. Nevertheless, the FCE summary report effectively criticized Chalker

for failing to “demonstrate sufficient signs of maximal physical effort on the

majority of the tasks,” id., and ultimately concluded he was “capable of

performing physical work at the Light level, as defined by the U.S. Department of

Labor in the Dictionary of Occupational Titles.” Id.

      Moreover, the FCE summary report makes no mention of the fact that

Chalker, according to his own undisputed reports and those of his treating

physician, was on pain medication during the FCE and was incapacitated by pain

for several days following the FCE. That evidence, as Chalker asserts, likewise

calls into question the FCE summary report’s conclusion that he was capable of

performing “Light level” work on a full-time (8 hours per day, 40 hours per week)

                                           -2-
basis. 1 See Force v. Ameritech Corp., Inc., 250 Fed. Appx. 662, 669 (6th Cir.

2007) (concluding that administrator’s decision to deny benefits was arbitrary and

capricious because, in pertinent part, it was based on an internally inconsistent

FCE).

        Although MetLife’s decision to terminate Chalker’s long-term disability

benefits was not based solely on the FCE summary report, the administrative

record firmly establishes that it played a significant role in MetLife’s decision.

To begin with, it is clear that it was the FCE summary report’s conclusion that

Chalker could perform full-time work at a “Light level” that led to MetLife’s

preparation of the Employability Assessment and Labor Market Analysis and, in

turn, that report’s conclusion that Chalker was capable of working full-time in

several alternative management-type roles. Further, it is clear from the

administrative record that MetLife’s consulting physicians placed significant

weight on the FCE summary report and the related Employability Assessment.

For example, Dr. Schmidt, in her April 2004 final report, opined (without having

        1
         In Buckardt v. Albertson’s, Inc., 221 Fed. Appx. 730, 736-37 (10th Cir.
2007), this court noted the existence of “contradictory findings” in two FCEs
performed on the plaintiff in that case, but nevertheless concluded that the
administrator’s decision to deny benefits was neither arbitrary or capricious.
Buckardt is distinguishable, however, because (a) the internal inconsistencies
cited by the plaintiff in that case were nowhere near as serious as those at issue
here, (b) there is no indication that the FCEs in Buckardt failed to account for
critical information regarding the plaintiff, as is the case here, and (c) two FCEs
were performed in Buckardt, and the two physical therapists who performed them
independently concluded that the plaintiff was capable of performing modified
sedentary work.

                                         -3-
personally examined Chalker) that the conclusion set forth in the FCE summary

report “represent[ed] a minimum, not a maximum, work capacity,” and that “there

was no objective evidence that [Chalker] would be unable to work in a light

capacity on a full-time basis.” Aplee. Supp. App. at 707. Similarly, Dr. Mody

noted in her written report (likewise without having personally examined Chalker)

that, according to the FCE summary report, “Chalker was found to be capable of

sedentary level activities.” Id. at 573. In turn, MetLife’s own June 3, 2004 letter

of denial noted that, according to the Employability Assessment, Chalker “ha[d]

the ability to work at a light level” and had identified “[t]hree potential

occupations for which [he was] qualified . . . .” Id. at 520. Likewise, MetLife’s

final denial letter of October 5, 2004, noted that Chalker’s benefits “were

[originally] terminated based” in part on the results of the FCE and the

Employability Assessment, id. at 611, effectively criticized Chalker for engaging

in “self-limiting” behavior during the FCE, id. at 612, and noted that, according

to the Employability Assessment, he was capable of performing other alternative

occupations, id.

      In summary, MetLife’s decision to terminate Chalker’s long-term disability

benefits was arbitrary and capricious due to the significant reliance that MetLife

and its consulting physicians placed on the flawed FCE summary report.

Accordingly, assuming that Chalker’s suit was timely filed, the proper route is to




                                          -4-
reverse the judgment of the district court and remand to MetLife for further

consideration of Chalker’s claim for long-term disability benefits.

                           Timeliness of Chalker’s lawsuit

      As the majority notes, the district court concluded, as an alternative basis

for granting judgment in favor of defendants, that Chalker’s suit was untimely

filed. The district court’s ruling on this issue is subject to de novo review.

Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1290 (10th Cir. 1991) (“We

review a district court’s ruling on the applicability of a[n] [ERISA] statute of

limitations de novo.”).

      ERISA contains no statute of limitations which governs claims under

section 1132(a)(1)(B) or section 1132(c). Courts therefore look to the “most

analogous” state statute of limitations, e.g., Held v. Manufacturers Hanover

Leasing Corp., 912 F.2d 1197, 1201 and n.4 (10th Cir. 1990), or if the plan itself

contains a limitations period, to the plan if the contractual limitations period is

reasonable. E.g., Northlake Reg’l Med. Ctr. v. Waffle House Sys. Employee

Benefit Plan, 160 F.3d 1301, 1303 (11th Cir. 1998); Doe v. Blue Cross & Blue

Shield United of Wis., 112 F.3d 869, 874-75 (7th Cir. 1997).

      Here, it is undisputed that Section 10.10 of the Plan purports to set forth a

contractual limitations period:

      Limitation of Action. In addition to the provisions of Section 10.9
      [requiring exhaustion of plan remedies], no action at law or in equity
      shall be brought to recover Benefits under the Plan prior to the


                                          -5-
      expiration of sixty (60) days after a claim has been filed in
      accordance with the requirements of the Plan, nor shall an action be
      brought at all unless within one (1) year after expiration of the time
      permitted under the Plan for furnishing proof of disability to the
      Claims Administrator.

Aplee. Supp. App. at 70. Defendants argued in their motion for judgment on the

administrative record, and the district court agreed, that this one-year limitations

period was controlling, “accrued on the date that MetLife rendered its final

decision on Chalker’s administrative appeal of the termination of his benefits,”

and expired one year later, on or about October 5, 2005, approximately two weeks

before Chalker filed this action (October 21, 2005). App. at 35 (defendants’

motion for judgment on the administrative record).



      a) Ambiguity of contractual limitations provision

      Chalker contends that “Defendants’ contractual limitations provision is

unenforceable because it is not presented in a clear manner.” Aplt. Br. at 23. In

this regard, Chalker notes that the “contractual limitations provision . . . does not

appear within the section of the Plan dealing with claim review or appeal

procedures,” but instead “appears within the ‘General Provisions’ section of the

Plan, buried amidst legal boilerplate relating to choice of law and severability.”

Id. at 20. He also asserts that “the specific language of Defendants’ contractual

limitations provision is at best confusing, and at worst unintelligible.” Id. In




                                         -6-
particular, Chalker contends that the phrase “expiration of the time permitted . . .

for furnishing proof of disability,” as used in the provision, is unclear.

      Addressing Chalker’s contentions in order, the positioning of the

contractual limitations provision within the Plan itself does not appear to be

problematic. To be sure, the contractual limitations provision is contained in

Article X of the Plan, which outlines the Plan’s “General Provisions,” rather than

Article VIII, which addresses the Plan’s “Claims Procedure.” That fact standing

alone, however, does not appear to render the contractual limitations provision

unenforceable.

      Chalker’s contentions regarding the lack of clarity of the contractual

limitations provision, on the other hand, have merit. As noted by Chalker, the

provision states that the one-year limitations period begins running “after

expiration of the time permitted under the Plan for furnishing proof of disability

to the Claims Administrator,” Aplee. Supp. App. at 70, yet nowhere does the Plan

expressly set forth any time period for “furnishing proof of disability to the

Claims Administrator.” In the district court’s view, “[t]he ‘expiration of the time

permitted . . . for furnishing proof of disability’ clearly contemplate[d] the denial

of benefits after exhaustion of administrative remedies,” and “[t]here c[ould] be

no other reasonable interpretation for this particular provision within the Plan.”

App. at 103. The district court’s analysis on this point is suspect, however,

because the phrase “furnishing proof of disability” clearly focuses on the act of


                                          -7-
the claimant, i.e., submitting or furnishing documents or other evidence to the

claims administrator, and thus contemplates a point in time prior to the claims

administrator making a final determination on a claim for benefits or on the

appeal of a denial of benefits. Thus, not only does defendants’ purported

construction of the contractual limitations provision fail to comport with its

language, this critical portion of the contractual limitations provision is not

“written in a manner clearly calculated to be understood by the average plan

participant,” as required by Section 1022(a) of ERISA, 29 U.S.C. § 1132(a).

Accordingly, the consequences of defendants’ inaccurate drafting should fall

squarely on them, rather than on Chalker. See Chiles, 95 F.3d at 1518.

      b) SPD’s silence as to contractual limitations period

      Chalker further contends “it is undisputed that Defendants’ contractual

limitations provision does not appear within the SPD.” Aplt. Br. at 18. Thus, he

contends, “such provision is in violation of 29 U.S.C. Section 1022(a), and is

unenforceable against [him].” Id. Chalker also asserts, and correctly so, that the

district court failed to address this argument.

      “Where the SPD [at issue] is silent on a provision that the plan documents

include, and plaintiff contends therefore the term cannot apply to him,” “a two-

step approach” must be used “to analyze plaintiff’s argument.” Tocker v. Philip

Morris Co., 470 F.3d 481, 488 (2d Cir. 2006). “First, relying on the statutory

language of ERISA and its implementing regulations,” the court must “look to see


                                         -8-
whether ERISA requires the term to be stated in the SPD.” Id. “Second,” the

court must “consider whether plaintiff was likely prejudiced by the SPD’s silence

on the term or information at issue.” Id.; see Chiles, 95 F.3d at 1519 (holding

that, where an SPD incorrectly describes Plan benefits, the claimant must

demonstrate, in order to secure relief, that he significantly relied upon, or was

possibly prejudiced by, the faulty plan description).

      ERISA’s statutory language provides, in pertinent part, that “[t]he summary

plan description shall contain” information regarding “the remedies available

under the plan for the redress of claims which are denied in whole or in part . . .

.” 29 U.S.C. § 1022(b). Although this statutory language does not speak directly

to the filing of a lawsuit under ERISA or the limitations period that applies to the

filing of such a lawsuit, ERISA’s implementing regulations do. Specifically, 29

C.F.R. § 2520.102-3 outlines in substantial detail the contents that must be

included in the summary plan description. Among those requisite contents are:

      The procedures governing claims for benefits . . . , applicable time
      limits, and remedies available under the plan for redress of claims
      which are denied in whole or in part . . . .

29 C.F.R. § 2520.102-3(s) (emphasis added). In my view, this regulatory

reference to “applicable time limits,” particularly since it is mentioned in the

same sentence as “procedures” and “remedies,” includes the applicable time

limits, after administrative appeals have been exhausted, for filing suit to

challenge a denial of benefits (especially if the time period for doing so is


                                         -9-
controlled by the plan at issue and is shorter than the otherwise applicable statute

of limitations).

      Reviewing the SPD at issue here, it is clear that it failed to satisfy these

regulatory requirements. To be sure, the SPD outlined in detail the administrative

appeal procedures available to a claimant whose claim had been denied, including

the time limits applicable to those procedures. Aplee. Supp. App. at 25. The

SPD also contained a lengthy section entitled “YOUR RIGHTS UNDER ERISA,”

which indicated, in pertinent part, “If you have a claim for benefits that is denied

or ignored in whole or in part, you may file suit in a state or federal court.” Id. at

27. This same section also indicated, in pertinent part, that “[i]f you [the

claimant] have any questions about . . . your rights under ERISA, you should

contact the nearest office of the Pension and Welfare Benefits Administration,

U.S. Department of Labor, listed in your telephone directory, or the Division of

Technical Assistance and Inquiries [in] . . . Washington, DC . . . .” Id. Notably,

the SPD made no mention of the generally applicable time limits for filing suit

under ERISA, or of the specific time limitation for doing so that was set forth in

the Plan itself. Thus, a plan participant reviewing and relying on the SPD would

not have been aware of the Plan’s purported one-year time period for filing suit,

and, had they contacted either of the federal offices listed in the SPD to inquire

about the time for filing suit, would likely have been told only of the rule

generally applicable to ERISA law suits. In other words, the federal offices listed

                                         - 10 -
in the SPD would not have known about the unique, one-year limitations period

set forth in the Plan.

      That leads to the second question in the two-part inquiry, i.e., was Chalker

“likely prejudiced” by the SPD’s silence on this matter? In other words, given

the circumstances at issue here, is it “probable” that Chalker would have filed his

action within the one-year contractual limitations period had “the SPD been

adequate”? Wilkins v. Mason Tenders Dist. Council Pension Fund, 445 F.3d 572,

585 (2d Cir. 2006). The administrative record compiled by defendants contains

nothing relevant to this inquiry (e.g., a letter from MetLife to Chalker advising

him of the one-year contractual limitations period). Nor does Chalker’s response

to defendants’ motion for judgment (e.g., an affidavit from Chalker), although

that is understandable in light of the fact that defendants’ motion was expressly

based solely on the administrative record. Given the absence of any significant

evidence on the “likely prejudice” issue, the best course in my view it to remand




                                        - 11 -
this case to the district court for further proceedings on the issue. 2 See Chiles, 95

F.3d at 1519 (“we leave it to the district court to determine the issue of reliance”).

                                          II.

      For the reasons outlined above, I would reverse the judgment of the district

court and remand for further proceedings on the issue of whether Chalker was

“likely prejudiced” by the failure of the Summary Plan Description to inform him

of the one-year contractual limitations provision. If, on remand, the district court

determines that Chalker was “likely prejudiced,” then the district court should



      2
         In the absence of a remand, it appears more likely than not that Chalker
was prejudiced by the SPD’s silence as to the existence of a contractual
limitations period. “[T]he SPD is an employee’s primary source of information
regarding employment benefits, and employees are entitled to rely on the
descriptions contained in the summary.” Mario v. P&C Food Mkts., Inc., 313
F.3d 758, 765 (2d Cir. 2002) (internal quotation marks omitted); see Chiles, 95
F.3d at 1519 (“the purpose of the SPD is to give employees an understanding of
the plan upon which they are entitled to rely”). An employee in Chalker’s
situation who relied exclusively on the SPD at issue in this case, including calling
one or both of the federal offices listed in the SPD, would not have been aware of
the one-year limitations period set forth in the Plan, and instead presumably
would have relied on the general principles of law applicable to ERISA claims.
Under those principles, an action seeking benefits under ERISA must comply with
the “most analogous” state statute of limitations. Held v. Manufacturers Hanover
Leasing Corp., 912 F.2d 1197 (10th Cir. 1990). In this case, which was brought
in Utah, the most analogous state statute of limitations is Utah’s three-year statute
of limitations applicable to written policies or contracts of first party insurance,
Utah Code Ann. § 31A-21-313(1). Lang v. Aetna Life Ins. Co., 196 F.3d 1102,
1104 (10th Cir. 1999) (holding that this statute was the most analogous state
statute for purposes of ERISA action filed in Utah). Thus, absent the one-year
limitations period set forth in the Plan, Chalker would have had three years in
which to file suit challenging the denial of his administrative appeal, and his
action indisputably would have been timely.

                                         - 12 -
remand the case to MetLife for further consideration of Chalker’s claim for long-

term disability benefits.




                                       - 13 -
